Arizona proposed rules of criminal procedure

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AR I ·z 0 NA
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C R I M I N A L P R 0 C E D U R E
THESE PROPOSED RULES ARE PUBLISHED BY THE ARIZONA
STATE BAR COMMITTEE ON CRIMINAL LAW FOR PRESENTATION
TO THE ARIZONA SUPREME COURT WITH THE RECOMMENDATION
THAT THEY BE PROMULGATED TO GOVERN CRIMINAL PRO­CEEDINGS
IN THIS STATE. THEY ARE BEING MADE AVAILABLE
TO THE PUBLIC IN ORDER TO AFFORD INTERESTED LAWYERS,
JUDGES, AND CITIZENS AN OPPORTUNITY TO REVIEW AND
COMMENT UPON THEM. COMMENTS SHOULD BE MAILED NO LATER
THAN SEPTEMBER 15, 1972 TO:
Marvin Linner, Esquire
Administrative Director of the Courts
Supreme Court of Arizona
State Capitol Building
Phoenix, Arizona 85007
ALL COMMENTS RECEIVED WILL BE REVIEWED WITH INTEREST
BY BOTH THE COMMITTEE AND THE COURT. ADDITIONAL
COPIES MAY BE OBTAINED FROM ANY CLERK OF THE SUPERIOR
COURT OR FROM THE ADMINISTRATIVE DIRECTOR OF THE
COURTS.
S c. \. C~ " c (D i. (1 7d..
A R I Z 0 N A
P R 0 P 0 S E D R U L E S
0 F
C R I M I N A L P R 0 C E D U R E
Presented To The
ARIZONA SUPREME COURT
By The
ARIZONA STATE BAR COMMITTEE ON CRIMINAL LAW,
The Supreme Court's Advisory Committee on Criminal Rules
July 15, 1972
The preparation of these Rules was aided by grants from the
Arizona Supreme Court, the Arizona State Justice Planning
Agency, and the National Institute of Law Enforcement and
Criminal Justice, Law Enforcement Assistance Administration
of the United States Department of Justice (pursuant to
Part c, Section 301B or Title I of the Omnibus Crime
Control and Safe Streets Act of 1968 (PL~90-351)).
ARIZONA STATE BAR COMMITTEE ON CRIMINAL LAW
Chairman
Charles E. Ares - Dean, University of Arizona College of Law, Tucson
Subcommittee Chairmen
Anthony H. Mason - Attorney, Phoenix
William J. Schafer, III - Assistant Attorney General, Phoenix
Phillip Weeks - Attorney, Phoenix
Members
* Robert R. Bean - Pinal County Attorney, Florence
Thelton D. Beck - Yavapai County Attorney; Attorney, Prescott
Edward Bolding - Pima County Public Defender, Tucson
Lloyd D. Brumage - Attorney, Casa Grande
Lawrence c. Cantor - Attorney, Phoenix
Gerald M. Caplan - Professor, Arizona State University, Tempe
B. Michael Dann - Attorney, Phoenix
William P. Dixon - Assistant Attorney General, Phoenix
John J. Flynn - Attorney, Phoenix
Honorable Charles L. Hardy - Judge, Superior Court of Arizona, Phoenix
Honorable Lawrence Howard - Judge, Court of Appeals, Tucson
Charles F. Hyder - Chief Deputy County Attorney, Phoenix
Anne Kappes - Deputy Public Defender, Phoenix
Howard A. Kashman - Pima County Public Defender, Tucson
John A. Lasota, Jr. - Legal Advisor, Metropolitan Police Depart~ent, Phoenix;
Visiting Professor, Arizona State University, Tempe
Roger McKee - Legal Advisor, Arizona Department of Public Safety;
Deputy County Attorney, Phoenix
George B. Morse - Attorney, Tucson
Stephen D. Neely - Deputy County Attorney, Tucson
Gary K. Nelson - Attorney General,· State of Arizona, Phoenix
Lars Pedersen - Attorney, Tucson
Robert A. Ritchie - Deputy Public Defender, Phoenix
William R. Stevens, Jr. - Deputy County Attorney, Tucson
Thomas A. Thinnes - Attorney, Phoenix
Honorable Howard F. Thompson - Judge, Superior Court of Arizona, Phoenix
Honorable Lee H. Waggoner - Justice of the Peace, Prescott
James D. Whitney - Assistant United States Attorney, Tucson
James M. Wilkes - Assistant United States Attorney; Attorney, Tucson
Paul E. Wolf - Attorney, Tucson
Honorable Laurance T. wren - Judge, Superior Court of Arizona, Flagstaff
Thomas A. Zlaket - Attorney, Tucson
**
*
*
*
*
**
*
*
John M. Greacen - Project Director, Tucson
Frank D. Berry, Jr. - Research Associate, Tucson
Richard Van Duizend - Research Associate, Tucson
Behavior Research Center, Inc., Earl deBerge, President; Organizational Development
Associates, Inc., Donald A. Ehat, President; and Stephen D. N~ely - Consultants
Dale E. Pontius, John R. Bolt, Kim A. Richards, Dons. Alpert - Research Assistants
Janeece T. Stock, *Gertha L. Brown, Melinda s. Karnok - Secretaries
Resigned prior to completion of Rules
** Ex Officio
INTRODUCTION
The Rules of criminal Procedure were last revised in 1955. Since then the
nation has experienced the "criminal law revolution" and the problem of crime
control has become a matter of high domestic priority. The Arizona supreme court
has determined that a thorough review of our criminal justice system is in order.
'rhese proposed Rules of criminal Procedure are the result of two years of labor by
the state Bar committee on Criminal Law, acting as the Supreme court's advisory
board under A.R.S. §12-110. The research and drafting work was done by a superb,
full-time staff employed under a U.S. Department of Justice grant and funds made
available by the supreme court and the Arizona Legislature.
The committee has taken a fresh look at the entire criminal process with the
intent of improving its efficiency while preserving the fundamental rights of
defendants. Aware that delay in the courts is one of the principal criticisms of
the system, the committee has sought to identify the causes of unreasonable delay
and to remedy them. In view of the sweeping changes found to be necessary, we have
completely restructured the present system and have drafted an entirely new set of
rules.
Not surprisingly, some of the innovations proposed in these rules are contro-versial.
The proposals for tightening up preliminary hearings, increasing the
scope of mandatory pre-trial disclosure by both the prosecution and the defendant,
the open recognition and regulation of plea bargaining, the streamlining of the
appellate process and development of a unified post-conviction procedure are all
sure to generate considerable interest. 'rhe Committee has struggled hard with all
these issues, drawing on the best scholarship in the nation and on such rich veins
of ideas as the A.B.A. Project on Minimum standards for criminal Justice and re­cently
adopted procedural codes and rules from a number of other states. The
committee has not always been unanimous. The majority believes, however, that the
final proposals strike the best possible balance of the interests involved and as a
result constitute a fair and efficient system.
The proposed Arizona Rules, supported by extensive commentary prepared by the
staff, have now been submitted to the Supreme court and are being circulated to the
bench and bar of Arizona for comment. The returns will be collated and considered
by the supreme court prior to its promulgation of new Rules of Criminal Procedure.
Having poured literally thousands of hours into these draft rules, the committee and
its staff urge all those interested in the criminal process to subject them to the
most thoughtful scrutiny and to give the Supreme court the benefit of their most
careful appraisal.
CHARLES E. ARES, Chairman
TABLE 0 F C 0 N T E N T S
RULE NO. PAGE NO.
I. GENERAL PROVISIONS
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
1. Scope, Purpose and Construction, Computation of Time, Definitions,
Effective Date. 1
II. PRELIMINARY PROCEEDINGS
2.
3.
4.
5.
Commencement of Criminal Proceedings.
Arrest Warrant or Summons Upon Commencement of Criminal Proceedings.
Initial Appearance.
Preliminary Hearing.
2
4
6
9
III. RIGHTS OF PARTIES
Attorneys, Appointment of Counsel.
Release.
Speedy Trial.
Presence of Defendant, Witnesses and Spectators.
Change of Judge or Place of Trial.
Incompetency and Mental Examinations.
16
24
32
38
40
44
IV. PRETRIAL PROCEDURES
The Grand Jury.
Indictment and Information.
suspension of Prosecution.
Arraignment.
Discovery.
Pretrial Motion Practice; Omnibus Hearing; Dismissal.
Interlocutory Review.
Pretrial Conference.
55
59
62
63
67
84
94
96
V. PLEAS OF GUILTY AND NO CONTEST
Pleas of Guilty and No Contest. 97
VI. TRIAL
Trial by Jury; Waiver; Selection and Preparation of Jurors.
Trial.
Judgment of Acquittal.
Instructions. ·
Deliberations.
verdict.
103
108
111
111
112
114
VII. POST-VERDICT PROCEEDINGS
Post-Trial Motions.
Procedure After Verdict or Finding of Not Guilty By Reason of Insanity.
Judgment, Pre-Sentence Report, Pre-Sentencing Hearing, Sentence.
Probation and Probation Revocation.
Retention and Destruction of Records and Evidence.
Restoration of Civil Rights.
VIII. APPEAL AND OTHER POST-CONVICTION RELIEF
116
120
122
132
139
141
Appeals from Non-Record Courts.
Appeals from superior Court.
Other Post-Conviction Relief.
143
145
163
IX. POWERS OF COURT
Criminal Contempt.
Subpoenas.
Form, content and Service of Motions and Requests.
Local Rules.
172
174
175
176
Minority Report
Appendix - Forms
I. GENERAL PROVISIONS
1.1.
SCOPE, PURPOSE AND CONSTRUCTION, COMPUTATION OF TIME, DEFINITIONS, EFFECTIVE DATE. ~- THESE RULES SHALL GOVERN THE PROCEDURE IN ALL CRIMINAL PROCEEDINGS IN ALL
COURTS WITHIN THE STATE OF.ARIZONA. THE RULES OF PROCEDURE IN TRAFFIC CASES
SHALL CONTINUE TO APPLY IN ALL SITUATIONS TO WHICH THESE RULES DO NOT APPLY.
RULE 1.
comment: These rules are intended to provide uniform standards and procedures for crimin~l
proceedings before all Arizona co~rts: They are to govern non-record as well as record courts
unless specifically stated otherwise in a particular rule. Rule 39 authorizes all courts to
supplement these rules by local rules.
These rules apply in traffic cases except where a particular rule, by its terms, is made
in~pplicable to some or all traffic cases, or restricted in operation to the superior court. The
rules distinguish between "minor traffic offenses" and other traffic offenses in some situations.
The committee intends that Rules III, IV, V, VI and VII of the Rules of Procedure in Traffic
cases will continue to govern the processing of minor traffic cases. Rules 20.1, 20.5 and 20.6
will apply to pleas of guilty or no contest in all traffic cases. Rule VIII of the
Rules of Procedure in Traffic Cases will c~ntinue to govern the procedure for accepting pleas in
minor traffic cases: 1pleas in other traffic cases,~' D.W.I., will be taken with the full
formalities of Rules 20.2, 20.3 and 20.4.
1.2. PURPOSE -AND CONSTRUCTION.
THESE RULES ARE INTENDED TO PROVIDE FOR THE JUST, SPEEDY DETERMINATION OF EVERY
CRIMINAL PROCEEDING. THEY SHALL BE CONSTRUED TO SECURE SIMPLICITY IN PROCEDURE,
FAIRNESS IN ADMINISTRATION, AND THE ELIMINATION OF UNNECESSARY DELAY AND EXPENSE.
comment: See Fed. R. Crim. P. 2. The experience of the federal courts with their Rule 2 has
demonstrated the immense value of a rule of general construction. See, for examples, 1 c. Wright,
Federal Practice & Procedure §§31 and 32 (1969). ~-
Rule 1.2 is designed for use by Arizona courts as a general policy statement by which problems
of construction may be solved. It is not, however, to be used to circumvent the requirements of
other rules.
1.3. COMPUTATION OF TIME.
IN COMPUTING ANY PERIOD OF TIME OF MORE THAN 24 HOURS PRESCRIBED BY THESE
RULES, BY ORDER OF COURT, OR BY ANY APPLICABLE STATUTE, THE DAY OF THE ACT
OR EVENT FROM WHICH THE DESIGNATED PERIOD OF TIME BEGINS TO RUN IS NOT TO BE
INCLUDED. THE LAST DAY OF THE PERIOD SO COMPUTED SHALL BE INCLUDED, UNLESS IT
IS A SATURDAY, SUNDAY OR LEGAL HOLIDAY, IN WHICH CASE THE PERIOD SHALL RUN UNTIL
THE END OF THE NEXT DAY WHICH IS NEITHER A SATURDAY, SUNDAY OR LEGAL HOLIDAY.
WHENEVER A PARTY HAS THE RIGHT OR IS REQUIRED TO TAKE SOME ACTION WITHIN A
PRESCRIBED PERIOD AFTER SERVICE OF A NOTICE OR OTHER PAPER AND SUCH SERVICE IS
MADE BY MAIL, 3 DAYS SHALL BE ADDED TO THE PRESCRIBED PERIOD.
comment: This section incorporates the formula for computing time contained in Ariz. R. Civ.
p 6(a) and (e). Identical time computation standards should greatly simplify the task of clerks,
c~urt administrators, and attorneys who practice in both the civil and criminal areas.
1.4. DEFINITIONS.
WHENEVER THEY APPEAR IN THESE RULES THE TERMS BELOW SHALL CARRY THE FOLLOWING
MEANING:
MINOR TRAFFIC OFFENSE. ANY OFFENSE CONTAINED IN ARIZ. REV. STAT. ANN. tit.
a. 28, EXCEPT THOSE PUNISHABLE BY IMPRISONMENT FOR 30 DAYS OR MORE.
b.
PRESIDING JUDGE. FOR THE SUPERIOR COURT, THE JUDGE IN COUNTIES HAVING ONLY
ONE SUPERIOR COURT JUDGE, AND, IN OTHER COUNTIES, THE JUDGE DESIGNATED BY
THE SUPREME COURT AS PRESIDING JUDGE, OR ANOTHER JUDGE APPOINTED BY HIM
REGULARLY TO HANDLE A PARTICULAR DUTY. FOR OTHER COURTS, THE JUDGE, OR,
IN COURTS HAVING MORE THAN ONE JUDGE, THE JUDGE DESIGNATED AS PRESIDING
JUDGE BY THE APPROPRIATE AUTHORITY. THE PRESIDING JUDGE FOR THE SUPERIOR
COURT IS THE PRESIDING JUDGE OF THE COUNTY.
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c. NON-RECORD COURT. ANY JUSTICE OF THE PEACE, CITY MAGISTRATE OR POLICE
COURT.
Comment: Rule l.4(a). Currently, title 28 includes the following offenses punishable by
imprisonment for 30 days or more--driving under the influence of intoxicating liquor or drugs,
reckless driving, racing on highways, weight violations, and the third conviction within one year
of any other offense in chapter 6 of title 28. See Ariz. Rev. Stat. Ann. §§28-692, -692.01, -693,
-708, -1008 and -1009 (Cum. Supp. 1971) and Ariz:-R'ev. stat. Ann. §28-1031 (1956). The definition
is included here to clarify the meaning of the term in Rules 15 (Arraignment), 20 (Pleas of Guilty
and No Contest), and 29 (Sentencing).
Rule l.4(b). The definition of "presiding judge" contained here does not alter the current
understanding of that term. It is included here to clarify the meaning of the term in Rules 4.1
(Procedure on Arrest), 8 (Speedy Trial) and 10 (C~ange of Judge or Place of Trial).
1.5. EFFECTIVE DATE AND APPLICABILITY OF RULES.
THESE RULES SHALL GOVERN ALL CRIMINAL ACTIONS COMMENCED ON OR AFTER TWELVE
O'CLOCK MIDNIGHT,
Comment: The rule deviates from current Ariz. R. Crim. P. 366 in that it makes the new rules
apply only to cases commenced on or after the effective date, not to cases pending on that date.
Rule 366 made the current rules applicable to pending cases, but allowed the court to use the old
rules whenever it concluded they would be more feasible or just.
II. PRELIMINARY PROCEEDINGS
RULE 2. COMMENCEMENT OF CRIMINAL PROCEEDINGS.
2.1. MISDEMEANORS.
a. SUPERIOR COURT. MISDEMEANOR ACTIONS MAY BE COMMENCED IN SUPERIOR COURT
BY INDICTMENT, OR BY INFORMATION FILED DIRECTLY IN SUPERIOR COURT.
b. NON-RECORD COURTS. MISDEMEANOR ACTIONS TRIABLE IN COURTS NOT OF RECORD SHALL
BE COMMENCED BY COMPLAINT·
C~mm~nt:. Rule 2.l(a). Constitutionally, the extent of the superior court's original misd7meanc~
jurisdiction is not clear. Ariz. Const. art. 6 §14(4) restricts the jurisdiction of the superior
court "to those misdemeanors which are not othe~ise provided for by law." Since Ariz. Rev. Stat.
Ann. §22-301(4) (Cum. Supp. 1971) gives justices of the peace jurisdiction over "low m~sdemeanors"
(offenses punishable by not more than 6 months imprisonment or a $300 fine), the superior court
could be held, under the literal wording of the provision to have no jurisdiction over such offenses.
However, Ariz. Rev. Stat. Ann. §12-123 (1956) grants the ~uperior court concurrent jurisdic~ion over
low misdemeanors. Since Ariz. Const. art. 6, §14(4) was derived from language in former Ariz. Const.
art. 6, §6, and the statute has been sustained in the face of that provision, State v. Johnso~, ,80
Ariz. 45, 292 P.2d. 465 (1955), the fairest conclusion is that the superior court does have original
jurisdiction over low misdemeanors.
Rule 2.l(a) describes the means by which misdemeanor prosecutions may be initiated in the
superior court. It simply restates the requirement of Ariz. Const. art. 2, §30 that all prose?u­tions
in superior court proceed by indictment or information. While indictment ~snot the ordinary
method of commencing misdemeanor prosecutions, there is no reason why the grand J~rr should not be
able to charge them. See Ariz. Rev. Stat. Ann. §21-413 (Cum. supp. 1971) (au~horiz~ng the ~rand
jury to return a charge of "commission of a public offense"). The use of a dir7ct.information
(i.e., a complaint filed directly in the superior court without a.preliminary finding of probable
cause by a magistrate) is the more normal method of proceeding.
Rule 2.l(b), This section, which states the means of commencing misde~eanor acti~~~n~n ~~!tice
of the peace and city magistrate courts, authorizes commencement of the actio~ ~ytcompcedur~ or­Ariz.
Rev. Stat. Ann. §22-311 (1956), including the notice-to-appear-and-comp ain pro es and
Ariz. Rev. Stat. Ann. §13-1422 (Cum. Supp. 1971), the use of which the committee approv
encourages.
An indictment in a non-record court is clearly inappropriate.
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2.2. FELONIES.
FELONY ACTIONS MAY BE COMMENCED
a. BY INDICTMENT, WHICH MAY OR MAY NOT BE PRECEDED BY A COMPLAINT; OR
b. BY THE FILING OF A COMPLAINT BEFORE A MAGISTRATE IN A NON-RECORD COURT,
UNLESS GOOD CAUSE IS SHOWN FOR FILING THE COMPLAINT IN A COURT OF RECORD.
Comment: This section simply codifies the current law. See Ariz. R. Crim. P. 78, 79. A
felony proceeding in Arizona may be prosecuted only by indictment or information. Ariz. Const.
art. 2, §30.
Rule 2.2(a). The procedures governing the return of an indictment are set forth in Rule 12.
The filing of a complaint is neither a condition precedent to the return of an indictment, nor a
bar to proceeding by indictment thereafter. Cf. Wilson v. Garrett, 104 Ariz. 57, 448 P.2d 857 (1969).
Rule 2.2(b). A prosecution may also be initiated by the filing of a complaint before a
magistrate. The last clause of Rule 2.2(b) permits the filing of the complaint in superior court
only upon a showing of good cause. T~e time of the superior court is too important to waste on
preliminary criminal matters, except in rare.c~ses, such as situations appropriate.for a "Rule l"
hearing (see Rule 2.4). or where a number of Joinable offenses have been committed in different
justice precincts and ~an best be handled in a single proceeding in superior court. This provi­sion
is not intended to permit refiling of a complaint in superior court after it has been
dismissed by the appropriate justice of the peace. See Ariz. Rev. Stat. Ann. §22-301 (Cum. supp.
1971); Wilson v. Garrett, supra.
The proposed rule does not contain the provision of current Ariz. R. Crim. P. 79 for auto­matic
waiver of a preliminary hearing by entry of a plea to the merits after an information has
been filed. Rule 5.1 specifically requires such waiver to be in writing in every case, and, under
Rule 15, the arraignment does not mark the deadline for raising any defense or objection.
2.3. FORM AND CONTENT OF COMPLAINT.
A COMPLAINT IS A WRITTEN STATEMENT OF THE ESSENTIAL FACTS CONSTITUTING A
PUBLIC OFFENSE, MADE UPON OATH BEFORE A MAGISTRATE.
comment: This section greatly simplifies the definition of "complaint" contained in current
Ariz. R. Crim. P. 1. The simplification is in accord with the committee's policy of removing
unduly technical language from the rules wherever possible. For drafting guidance, see Form I,
which follows the long-standing Arizona practice of allowing complaints to be filed on the basis
of the complainant's personal knowledge, or his information and belief. See Turley v. State, 48
Ariz. 61, 59 P.2d 312 (1936); State v. Currier, 86 Ariz. 394, 347 P.2d 29-rT959). The Arizona
Traffic Ticket and Complaint complies with this rule.
2.4. DUTY OF MAGISTRATE UPON FILING OF COMPLAINT OR DIRECT INFORMATION.
THE UAGISTRATE BEFORE WHOM A COMPLAINT OR RULE 2.l(a) INFORMATION IS FILED
SHALL SUBPOENA FOR EXAMINATION SUCH WITNESSES AS HE DEEMS NECESSARY, AND SUCH
ADDITIONAL WITNESSES AS MAY BE REQUESTED BY THE PROSECUTOR. IF HE DETERMINES
FROM THE COMPLAINT, ANY AFFIDAVITS FILED, AND ANY TESTIMONY TAKEN, THAT THERE
IS REASONABLE CAUSE TO BELIEVE AN OFFENSE HAS BEEN COMMITTED AND THE DEFENDANT
COMMITTED IT, HE SHALL PROCEED UNDER RULE 3.1: IF NOT, HE SHALL DISMISS THE
COMPLAINT OR INFORMATION.
comment: This sectio~ se~s forth the.duties o~ the magistrate upon the filing of
a complaint or direct information. ~.Ariz. R. Crim. ;,. l(B), 2, 154 and 155. He is required
to determine whether or not the charge is supporte~ by. reasonable cause," and is empowered to call
such witnesses as he deems necessary to the determination.
The rule preserves the so-called "c;>ne man.g7az;d ~ury" of current Ariz. R. Crim. P. 1, by
which the magistrate is empowered, on his own initiative or upon request of the prosecutor, to
call witnesses and generally to inquire into the existence of criminal activity--because he is
unsatisfied by the material and testimony ~resented to him, or to aid in full investigation of
criminal matters of public imp~rtance: .This procedure has.proved ~alua~le in screening complaints
filed by.private citizens and 7n providi~g the~prosecuto7 in ~ount7es without a grand jury with
a comparable truth-seeking device, especially .or cases in which witnesses refuse or are reluc-tant
to cooperate until subpoenaed and placed under oath.
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A "Rule l" hearing has often been initiated by the filing of a "John Doe" complaint by a
prosecutor who knows a crime has been committed but, because of the reluctance of witnesses, has
been unable to identify the culprit. The complaint is then amended or dismissed according to the
evidence adduced at the proceeding. Good practice dictates recording the testimony taken at such
hearings in order to avoid having to call the judge or prosecutor to the stand should a witness's
testimony change thereafter.
The magistrate's duty under this ·rule is to protect members of the public from being "~arassed
by frivolous or malicious charges." Turley v. State, 48 Ariz. 61, 59 P.2d 312 (1936). He is
required generally to assure himself that the charges are based on more than "[c]ommon rumor or
report, suspicion, or even strong reason to suspect," Henry v. United States, 361 u.s. 98 (1959),
and that the complainant has personal knowledge of "reasonably trustworthy information," sufficient
"to warrant a man of reasonable caution in the belief" that an offense has been committed and that
the accused committed it, Ker v. California, 374 u.s. 23 (1963), before issuing a warrant or summons.
If the com~laint purports to be based on the actual knowledge.of the complainant, the magis­trate
may take it at face value and issue process without further proceedings, unless he has reason
to doubt the trustworthiness or reliability of the complainant or his knowledge, or reason to be­lie~
e that the complaint.is not, in fact, based on his knowledge, but rather upon information and
bel~ef. Erdman v. Superior Court, 102 Ariz. 524, 433 P.2d 972 (1967). If the complaint or infor­mation
purports to rest on information and belief (or the magistrate has reason to believe it
is so based), th7 magistrate must "satisfy himself, from an examination of the complaining witness
and such other witnesses as he may deem necessary" that reasonable cause exists. Erdman v.
Superior Court, supra at 529, 433 P.2d at 977; St~te v. Currier, 86 Ariz. 394, 347 P.2d 29"'(1959) •
Rule 2.4 goes beyond current Ariz. R. Crim. P. 154 by requiring the superior court, sitting
as a magis~rate, to make a "reasonable cause" determination upon the filing of a direct informa­tion.
A direct information serves the same purpose as a misdemeanor complaint filed in th~
justice court, and should be treated in the same manner. The rule is not intended to require any
change in current procedures under Rules of Procedure in Traffic Cases.
2.5. ALTERNATIVE PROCEDURE FOR COMMENCING MISDEMEANOR ACTIONS TRIABLE IN SUPERIOR COURT.
IN THE DISCRETION OF THE PROSECUTOR, A MISDEMEANOR ACTION TRIABLE IN SUPERIOR
COURT MAY BE COMMENCED BY FILING A COMPLAINT IN THE JUSTICE COURT AS UNDER
RULE 2.2(b) AND PROSECUTED THEREAFTER ACCORDING TO THE PROCEDURES APPLICABLE
IN FELONY CASES.
Comment: This rule is included at the request of prosecutors in smaller counties~ who have very
few high misdemeanor cases, and would prefer to follow a single procedure for all criminal cases to
be tried in superior court.
The committee concluded that no prejudice would result to either party, that the additional pre­liminary
hearings required would entail minimal effort in smaller counties, and that there are no
jurisdictional objections to such a procedure.
RULE 3. ARREST WARRANT OR SUMMONS UPON COMMENCEMENT OF CRIMINAL PROCEEDINGS.
3.1. ISSUANCE OF WARRANT OR SUMMONS.
a. ISSUANCE. UPON PRESENTMENT OF AN INDICTMENT, OR ON A FINDIN~ OF
REASONABLE CAUSE MADE PURSUANT ~O RULE 2.4, ~HE MAGISTRATE SHALL
IMME~IATELY ISSUE A WARRANT OR SUMMONS, OR A NOTICE OF SUPERVENING
INDICTMENT UNDER RULE 12.7(c).
b. PREFERENCE OF SUMMONS. A SUMMONS SHALL ISSuE IF THE DEFENDANT IS
NOT IN CUSTODY AN~ ~HE OFFENSE CHARGED IS BAILABLE AS A MA~TER OF
RIGHT, UNLESS THERE IS REASON TO BELIEVE THAT THE DEFENDANT WILL
NOT RESPOND TO IT. ~
c. SUBSEQUENT ISSUANCE OF WARRANT. IF A DEFENDANT WHO HAS BEEN DULY SUMMONED
FAILS TO APPEAR, OR THERE IS REASONABLE CAUSE TO BELIEVE THAT HE WILL FAIL
TO APPEAR, OR IF THE SUMMONS CANNOT READILY BE SERVED OR DELIVERED, AN
ARREST WARRANT SHALL ISSUE.
Comment: Rule 3.l(a). This section follows current Ariz. R. Crim. P. 2 and 154 requirinible
issuance of a warrant or summons when a complaint or direct information is supported b¥ reason
cause. It explicitly recognizes that a magistrate may not independently review the e~ide~ce ce
supporting an indictment. A valid indictment by itself constitutes reasonable causei ~7 ~ss~~n
cf process to bring the accused before the court. The rule permits.process u~on ~n t~
1~e~:ndant's
returned after the defendant has appeared in justice court to consist cf notice
0
e
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counsel-of-record of the supe~vening indictment and the day on which the defendant must first
appear in superior cour t. This pzovd si.on .is intended to eliminate the waste currently entailed
in requiring the police to serye a· warrant or summons on a defendant already represented by
counsel and notified of the c~arges against him. In addition, the defendant is often confused by
being arrested again for.the same offense~ . The committee concluded that issuing a warrant or
summons is not necessary 'fo~'the superior court to acquire jurisdiction, since the defendant, by
ap~earing,.consents to jurisaictiop. If he fails to appear, the court can then issue a warrant.
Under Rule 6.3(a) counsel ·is required to' file a notice of appearance whenever he first appears on the
defendant's behalf; he will, a Lao be required to continue representing the defendant until per­mitted
to withdraw under Rules' 6.3(b)' and (c). Thus, the defendant's counsel-of-record will always
be clear.
Rule 3.l(b). This section makes a major change in the relative use of arrest warrant and
summons. At present, the power of the magistrate to issue a summons is limited to those cases
which he is empowered to try. Ariz. R. Crim. P. ll(A) and 155. The Behavior Research Center
statistical study showed that an· arrest warrant is currently used in 93 percent of all felony
and high misdemeanor prosecutions -- a staggering percentage, especially in view of the finding
that 22 percent of those arrested·.are ~eleased on their own recognizance at the initial appearance.
(An additional 28 percent post the bond originally set and are released after the initial appear-ance.)
The almost automatic use of a warrant, therefore, has no relationship to the need for
arrest to secure the accused's presence in court or to protect the community. In fact, the
figures tend to show that ·persons arrested are ~ore likely than those summoned to flee the juris­diction
prior to completion of the case~ Six percent of all cases beginning with an arrest were
still pending at the time·~~ the sur:e~; only four percent of those begun by summons were pending.
The ~rop~sed rule d~emp~asi~~~ the1nature ~f the offense as the primary criterion for issuing
warrants (and setting the conditions of pretrial release -- see Rule 7). The nature of the offense
cannot be ignored, but the .contro·lling factor in deciding w'fi'ether a defendant should be taken
into custody or remain free ought,to be the likelihood of his subsequent appearance before the
court. In making this determination, the magistrate may consider any or all of the factors listed
in Ariz. Rev. Stat. Ann. §l3-1577(c~ (Cum. Supp. 1~71). See Rule 7.4(a) (1). Unjustified arrests
are an expensive burden on the public, an inconvenience to the defendant, and a waste of the
arresting officer's time.
~The oommittee ·intends·. t~·~t the information upon which the magistrate will issue an arrest
warrant will come from t.he
1.prpsecutor rather than directly from law enforcement personnel. How­ever,
it expects that the.prosecutor will.choose to transmit the information in writing, as an
attachment to the complaint;'the committee does not require that the prosecutor personally
appear before the magistrate in order for a warrant rather than a summons to issue.
Rule 3.l(c). Section (c) is drawn from current Ariz. R. Crim. P. ll(D). As under current
law, the court has the inherent power to issue more than one warrant or summons in a particular
case.
3.2. FORM AND CONTENT OF WARRANT OR SUMMONS.
a. WARRANT. THE WARRANT SHALL BE SIGNED BY THE ISSUING MAGISTRATE AND SHALL
CONTAIN THE NAME OF THE DEFENDANT OR, IF HIS NAME IS UNKNOWN, ANY NAME
OR DESCRIPTION .. BY.WHICH HE CAN BE IDENTIFIED WITH REASONABLE CERTAINTY.
IT SHALL S'rA'rE THE.OFFENSE WITH WHICH THE DEFENDANT IS CHARGED AND
COMMAND THAT,THE DEFENDANT.BE ARRESTED AND BROUGHT BEFORE THE ISSUING
MAGISTRATE OR, IF HE IS ABSENT OR UNABLE TO ACT, THE NEAREST OR MOST
ACCESSIBLE MAGISTRATE IN THE SAME COUNTY. IF THE DEFENDANT IS BAILABLE
AS A MATTER OF RIGHT, IT SHALL STATE THE AMOUNT OF A SECURED APPEARANCE BOND.
b. SUMMONS. THE SUMMONS SHALL BE IN THE SAME FORM AS THE WARRANT EXCEPT
THAT IT SHALL.SUMMON THE DEFENDANT TO APPEAR AT A STATED TIME AND PLACE
WITHIN 7 ·.DAYS, OF. THE DATE OF ISSUANCE. AT THE REQUEST OF THE PROSECUTOR
THE SUMMONS SHALL COMMAND THE DEFENDANT TO REPORT TO A DESIGNATED PLACE
TO BE PHOTOGRAPHED AND FINGERPRINTED PRIOR TO HIS APPEARANCE IN RESPONSE
TO THE SUMMONS. FAILURE TO SO REPORT SHALL RESULT IN DEFENDANT'S ARREST
AT THE TIME OF HIS APPEARANCE IN RESPONSE TO THE SUMMONS, UNLESS GOOD
CAUSE FOR SUCH FAILURE IS SHOWN, WHEREUPON THE MAGISTRATE SHALL DIRECT
THE DEFENDANT TO REPORT IMMEDIATELY FOR SUCH PHOTOGRAPHING AND FINGER-PRINTING.
comment: Rule 3.2 is taken from current Ariz. R. Crim. P. 3 and 11~). See also Fed. R. Crim.
P. 4(b). For drafting guidance see Forms II{a), ~I(b) and ~II.
Rule 3.2(a) re~ains the ·~uthority of:the:current rules for return of a warrant befor~ any
other magistrate in the same county, if the issuing magistrate is not available. ~comment
to Rule 4.1.
- 5 -
Rule 3,2(b) compels the magistrate, upon the request of the prosecutor, to command the de­fendant
who is summoned to report to the police station for a mug shot and fingerprinting. This
provision will further the committee's intention, expressed in Rule 3.l(b), that a summons be
uaed in lieu of a warrant to secure the attendance of eligible defendants~ A principal function
of arrest is the obtaining of mug shots and fingerprintsi $Urnmpned defendants ordinarily bypass
those procedures. This rule is intended to accommodate the legitimate needs of law enforcement
investigation with society's and the defendant's interest in minimizing the use of arrest.
This section is not intended to require the appearance of a defendant in a case where forfeiture
of collateral is authorized by law.
3.3. EXECUTION AND RETURN OF WARRANT.
a. BY WHOM. THE WARRANT SHALL BE DIRECTED TO, AND MAY BE EXECUTED BY, ALL
PEACE OFFICERS IN THE STATE.
b. MANNER OF EXECUTION, A WARRANT SHALL BE EXECUTED BY ARREST OF THE DEFENDANT.
THE OFFICER NEED NOT HAVE THE WARRANT IN HIS POSSESSION AT THE TIME OF THE
ARREST, BUT UPON REQUEST HE SHALL SHOW THE WARRANT TO THE DEFENDANT AS SOON
AS POSSIBLE. IF THE OFFICER DOES NOT HAVE THE WARRANT IN HIS POSSESSION AT
THE TIME OF THE ARREST, HE SHALL INFORM THE DEFENDANT OF THE OFFENSE CHARGED
AND OF THE FACT THAT A WARRANT HAS BEEN ISSUED.
c, RETURN, RETURN OF THE WARRANT SHALL BE MADE EITHER TO THE MAGISTRATE WHO
ISSUED IT OR TO THE MAGISTRATE BEFORE WHOM THE DEFENDANT MAKES HIS INITIAL
APPEARANCE,
Comments Rule 3.3 is derived from current Ariz. R. Crim. P. 4 and Fed. R. Crim. P. 4(c). No
substantial change in the law is intended. The subject of arrest, covered by current Ariz. R. Crim.
P. 13 and 14 is deleted as unnecessary in view of Ariz. Rev. Stat, ~nn. 513-1407 (1956). A pro­vision
for return of an arrest warrant is added, since on occasion warrants have been lost or.
misplaced, See State v. Tages, 10 Ariz. App. 127, 457 P.2d 299 (1967)1 State v. OeRoss, 9 Ariz.
App. 497, 45°4P'.2d 167 (1969).
3.4. SERVICE OF SUMMONS.
THE SUMMONS MAY BE SERVED IN THE SAME MANNER AS THE SUMMONS IN A CIVIL ACTION,
EXCEPT THAT SERVICE MAY NOT BE BY PUBLICATION. IN ADDITION, A SUMMONS MAY BE
SERVED BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED. RETURN OF
THE RECEIPT SHALL BE PRIMA FACIE EVIDENCE OF SERVICE.
Comments Rule J,4 is derived in large part from Ariz. R. Crim. P. ll(C). Service by mail is
recommended by ASA, Standards Relating to Pre-Trial Release 53,4 (Approved Draft, 1968). The
problems it could cause are minimals 1£ ~ne defendant appears, the question of regularity of
service is moot1 if he does not, an arrest warrant will issue under Rule 3.l(c).
3.5. DEFECTIVE WARRANT,
A WARRANT OF ARREST SHALL NOT BE INVALIDATED, NOR SHALL ANY PERSON IN CUSTODY
THEREON BE DISCHARGED, BECAUSE OF A DEFECT IN FORM. THE WARRANT MAY BE
AMENDED BY ANY MAGISTRATE TO REMEDY SUCH DEFECT.
Comments This section is taken substantially from Ariz. R. Crim. P. S.
RULE 4. INITIAL APPEARANCE.
4.1. PROCEDURE UPON ARREST.
a, ON ARREST WITHOUT A WARRANT. A PERSON ARRESTED WITHOUT A WARRANT SHALL
BE TAKEN BEFORE THE NEAREST OR MOST ACCESSIBLE MAGISTRATE IN THE COUNTY
OR ARREST, WHEREUPON A COMPLAINT, IF ONE HAS NOT Al;iREADY BEEN FILED,
SHALL BE PREPARED AND FILED PROMPTLY.
- 6 -
b. ON ARREST WITH A WARRANT.
(1) A PERSON ARRESTED IN THE COUNTY IN WHICH THE WARRANT WAS ISSUED
SHALL BE TAKEN BEFORE THE MAGISTRATE WHO ISSUED THE .WARRANT OR
IF HE IS ABSENT OR UNABLE TO ACT, THE NEAREST OR MOST ACCESSIBLE
MAGISTRATE IN THE SAME COUNTY.
(2) A PERSON ARRESTED IN A COUNTY OTHER THAN THE ONE IN WHICH THE
WARRANT WAS ISSUED SHALL BE TAKEN BEFORE THE NEAREST OR MOST
ACCESSIBLE MAGISTRATE IN THE COUNTY OF ARREST. IF SUCH PERSON
IS ELIGIBLE FOR RELEASE AS A MATTER OF RIGHT, HE SHALL BE
RELEASED IN ACCORDANCE WITH RULE 7.2. IF HE IS NOT RELEASED
IMMEDIATELY, THE MAGISTRATE SHALL DIRECT THAT HE BE TAKEN TO
THE COUNTY WHERE THE WARRANT ORIGINATED TO APPEAR BEFORE THE
ISSUING MAGISTRATE OR, IF HE IS ABSENT OR UNABLE TO ACT, BEFORE
THE NEAREST OR MOST ACCESSIBLE MAGISTRATE.
c. TIMELINESS OF APPEARANCE BEFORE MAGISTRATE. A PERSON ARRESTED SHALL BE
TAKEN BEFORE A MAGISTRATE WITHOUT UNNECESSARY DELAY. IF HE IS NOT BROUGHT
BEFORE A MAGISTRATE WITHIN 24 HOURS AFTER ARREST, HE SHALL BE RELEASED
IMMEDIATELY.
d. ASSURANCE OF AVAILABILITY OF MAGISTRATE. THE PRESIDING JUDGE OF EACH
COUNTY SHALL TAKE SUCH STEPS AS ARE NECESSARY TO ASSURE THAT A MAGISTRATE
IS AVAILABLE IN THE COUNTY EVERY DAY OF THE WEEK TO HOLD INITIAL APPEARANCES
REQUIRED BY SECTION (d).
comment: Rules 4.l(a) and (b). These sections combine Ariz. R. Crim. P. 6, 7, 9, 10 and
Ariz. Rev. Stat. Ann. S§l3-1417, -1418 and -1419 (1956 and Cum. Supp. 1971). No substantial change
in current law is intended.
under Ariz. Rev. Stat. Ann. il-215(11) (Cum. Supp. 1971) any justice of the supreme court,
judge of the superior court, justice of the peace, or police magistrate is a "magistrate" for
J?Urposes of Rules 2, 3, 4, and 5 and for all other functions given to "magistrates" by these rules
or by statute. The status and jurisdiction of a judge sitting as a magistrate is neither enlarged
nor diminished by the extent of his jurisdiction to hear or try criminal cases. See,~'
Sheridan v. Superior Court, 91 Ariz. 211, 214, 370 P.2d 949, 951 (1962); Wilson v:---Garrett, 104
Ariz. 57, 448 P.2d 857 (1969); Sta~e ex rel. Mahoney v. Stevens, 79 Ariz. 298, 288 P.2d 1077 (1955);
his duties as a magistrate are entirely separate and apart from his other judicial duties.
This long-standing definition of magistrate is not, in the committee's view, altered by Ariz.
Rev. stat. Ann. §22-301(5) (1971), which includes within the jurisdiction of justices of the peace
"felonies, but only for the purpose of commencing action and conducting proceedings through
preliminary examination and to hold the defendant to answer to the superior court or to discharge
the defendant if it appears that there is not probable cause to believe the defendant guilty of
an offense." As noted by the court in State ex rel. Corbin v. Murry, 102 Ariz. 184, 427 P.2d
135 (1967), this provisi~n was added to limit the ~urisdi7tion of the justice of the peace to
conduct preliminary hearings to cases arising in his pre7inct (~the court's contrary ruling
under the earlier statute, State ex rel. Corbin v. Superior Court, 100 Ariz. 236, 413 P.2d 264,
modified on rehearin, 100 Ariz. 362, 414 P.2d 738 (1966); it was not intended otherwise to reduce
is role as a magistrate, for instance to receive the return of a warrant issued upon return of an
indictment before a superior court judge.
Rule 4.l(a) does not require that a warrant be prepared and signed after a valid arrest
without a warrant; the committee concludes the current practice in this regard is pointless.
The release determination required by Rule 4.l(b) (2) is to be made according to Rule 7.4.
Rule 4.l(c). This provision defines the applicable standard of promptness as without unreason­able
delay and in no event .more than 24 hours after arrest. The "without unreasonable delay" portion
of the standard is taken from Ariz. Rev. Stat. Ann. SS13-1417, -1418 and -1419 (1956 and Cum. Supp.
1971). see also Fed. R. Crim. P. 5(a) (as amended 1972); Mallory v. United States, 354 U.S. 449
~1~57). - --
The committee was concerned by the practice which has developed under the "without unnecessary
delay" standard under which persons arrested on Friday afternoon, Saturday or Sunday are, as a
matter of course, kept in jail until Monday morning or afternoon when judges and lawyers find it
convenient to hold court. It concluded that no person should be held in jail in Arizona for more
ihan 24 hours without requiring the arresting agency to justify his continued incarceration before
a judicial officer.by means of an initial appearance. At that time the accused will be informed
of his legal rights and of the conditions under which he can obtain release pending further
proceedings. It feels strongly that any.inconvenience cau~ed is justified by the importance of
the fundamental rights protected by the intervention of a Judge at the earliest time.
- 7 -
Therefore, the rule requires that an accused be released automatically unless he is taken
before a magistrate within 24 hours of his arrest. However, the rule does not authorize 24-ho11r
incarceration in every case; the police must take,an accused before a mag~strate "without unnecessary
delay", i.e., after necessary booking and investigation procedures are completed. This will be
within less than 24 hours in almost every case unless a magistrate is unavailable before that time.
The rule does not require every ~agistrate to be available 24 hours a day. It requires only
that~ magistrate in each county be available at one time during every day of the week. In
Mohave, Coconino, Yavapai and other sparsely popul~ted counties, local law enforcement officers
will have to decide in each case of a weekend arrest whether to transport the accused to the nearest
magistrate on duty or to release him with a notice to appear on the next cou!t day.
The committee does not intend that a prosecutor be required to appear at such initial appear­ances.
A law enforcement officer can.complete the release questionnaire information (~Rule
7.4(a) (1) and Form IV) and appear with the accused before the magistrate. A formal .complaint is
to be filed promptly; it need not be prepared by the time of the initial appearance if the charges
against the defendant, and reasonable cause to support them, sufficiently appear from the release
questionnaire.
A maximum 24-hour limitation on incarceration without review by a magistrate is a common
provision. The 1968 Omnibus Crime Bill includes a 6 hour provision. A plan recently adopted for
Dade County, Florida requires an initial appearance within 3 hours. The tentative draft of the
ALI Model Code of Pre-Arraignment Procedure includes a 24-hour limit. See also Alaska Stat. §12.
25.150 (24 hour limit); Del. Code Ann. §1911 (24 hour limit); N.B. Ann.-st'a~S94:20-a ("without
~nnecessary delay and in no event later than 24 hours"); R.I. Gen. L. 12-7-13 (24 hours for
residents, 48 hours for non-residents).
The current rule in Arizona is that a delay of even 24 hours is not ipso facto unreasonable
for purposes of suppressing statements obtained from the defendant prior to his initial appearance,
unless it can be shown that the delay was used to coerce the defendant into incriminating himself.
The delay, however, must be considered in determining the voluntariness of any statements made
during this period. State v. Jordan, 83 Ariz. 248, 320 P.2d 446 (1958), cert. denied, 357 U.S.
922 (1958); State v. Ramos, 11 Ariz. App. 196, 463 P.2d 91 (1969); see Mallory, supra; McNabb v.
United States, 318 U.S. 332 (1943). ~
Rule 4.l(d). Clearly, requiring that every arrested person be taken before a magist:ate within
24 hours places a burden on the court system to provide the needed judicial manpower. This rule
requires the presiding judge of each county (defined in Rule 1.4(b)) to see that at least one
magistrate is available within the county every day of the week. Superior court judges, justices
of the peace and city magistrates can be called upon to bear their share of this burden.
The rule will serv~ as a delegation of the chief justice's authority ~ver justices of the
peace to the pre~iding Judge of the superior court of each county.· ~Ariz. Const. art. 6, §3.
He may also use Judges pro tempore, appointed under Ariz. Rev. Stat. Ann. §§12-441 through -444
(Cum. Supp. 1971) to obtain additional judicial m~npower.
4.2. INITIAL APPEARANCE.
a. IN GENERAL. AT THE DEFENDANT'S INITIAL APPEARANCE, THE MAGISTRATE SHALL:
(1) ASCERTAIN THE DEFENDANT'S TRUE NAME AND ADDRESS AND, IF NECESSARY,
AMEND THE FORMAL CHARGES TO REFLECT IT, INSTRUCTING THE DEFENDANT
TO NOTIFY THE COURT PROMPTLY OF ANY CHANGE OF ADDRESS:
(2) INFORM HIM OF THE CHARGES AGAINST HIM;
(3) INFORM HIM OF HIS RIGHTS TO COUNSEL AND TO REMAIN SILENT;
(4) APPOINT COUNSEL IF THE DEFENDANT IS ELIGIBLE FOR AND REQUESTS APPOINTED
COUNSEL UNDER RULE 6; AND
(5) DETERMINE THE CONDITIONS OF RELEASE IN ACCORDANCE WITH RULE 7.2.
b. MISDEMEANORS; FELONIES CHARGED BY INDICTMENT. WHEN A DEFENDANT CHARGED
WITH A MISDEMEANOR OR INDICTED FOR A FELONY IS BROUGHT BEFORE A MAGISTRATE
FOR HIS INITIAL APPEARANCE, HE SHALL, IN ADDITION TO THE PROCEDURES SET
FORTH IN SECTION (a), BE ARRAIGNED IN THE MANNER PRESCRIBED BY RULE 15, IF
COUNSEL IS PRESENT OR WAIVED, UNLESS HE APPEARS BEFORE A MAGISTRATE WITHOUT
JURISDICTION TO TRY THE OFFENSE, WHEREUPON THE MAGISTRATE SHALL TRANSFER THE
CASE TO THE PROPER COURT FOR ARRAIGNMENT.
c. FELONIES CHARGED BY COMPLAINT. WHEN A DEFENDANT IS CHARGED IN A COMPLAINT
WITH A FELONY, THE MAGISTRATE SHALL, IN ADDITION TO THE PROCEDURES REQUIRED
BY SECTION (a):
- 8 -
(1) INFORM THE DEFENDANT OF HIS RIGHT TO A PRELIMINARY HEARING AND THE
CIRCUMSTANCES UNDER WHICH AND PROCEDURES BY WHICH THAT RIGHT MAY
BE WAIVED: AND
(2) UNLESS WAIVED, SET THE TIME FOR A PRELIMINARY HEARING IN ACCORDANCE
WITH RULE 5.l(a).
Comment: This rule prescribes the procedure for the initial appearance. Section (a) prescribes
the procedures which are to be followed in all cases: sections Cb) and (c) provide additional pro­cedures
which must be followed depending on the manner of charging--indictment, information, or
complaint--and on the nature of the offense charged.
Rule 4:2(a). This section is designed to insure procedural compliance with Escobedo v. Illinois,
378 u.s. 478 (1964) and Miranda v. Arizona, 384 U.S. 436 (1966), as well as to provide prompt deter­~
ination of the conditions of release.
Under paragraph (1), the magistrate must ascertain the defendant's true name and address. This
is to insure the correctness of the charging document and to facilitate service. The defendant is
required to notify the court of any change of address. This provision retains the gist, but not
the detail of Ariz. R. Crim. P. 161.
Paragraph (2) requires that the defendant be advised of the charges against him. This can be
done by giving the defendant a copy of the complaint, information or indictment, or by relating the
information supplied by the law enforcement agency in the release questionnaire (Form IV). See
Ru 1 e 7 • 4 (a ) ( 1 ) •
Paragraph (3) requires notice to a defendant of his right to remain silent, his right to
counsel under Rule 6.l(a), his right to waive representation by counsel under Rule 6.l(c), and,
where applicable, his right to appointed counsel under Rule 6.l(b).
Under paragraph (4), if the defendant is indigent and requests counsel, the magistrate shall
appoint counsel or cause counsel to be appointed under Rule 6.2. Rule 6 specifically provides for
appointment of counsel at the initial appearance and for compensation of counsel for justice court
representation. See Rules 6.l(a), 6.2 and 6.7(c) and comments thereto. Coleman v. Alabama, 399
u.s. 1 (1969): AB~Standards Relating to Providing Defense Services §5.2 (1968).
under paragraph (5) the magistrate must determine the conditions of release. The range of
possible conditions and the standards and procedures for determining what conditions of release
will be imposed are set forth in Rule 7. The magistrate before whom a defendant arrested in another
county is brought for his initial appearance is not bound by a previous release determination in
the case. ~Rules 7.4(c) and (d).
Rule 4.2(b). This provision applies when a low misdemeanor is filed by complaint in justice
or city magistrate court,~ Ariz. R7v •. stat. Ann. §~2-301(4) (Cum. Sup~. 1971), or wh7n an infor­mation
charging a misdemeanor, or an indictment charging a felony or a misdemeanor is filed in
superior court. In these instances the defendant shall be arraigned at his initial appearance if
counsel is present or waived. (A waiver may be for purposes of the arraignment only, provided
the defendant enters a not guil~y plea.) ~Rule 15.3. When a misdemeanor complain~ is filed
with a superior court judge ac~ing.as a magistra~e.o~ a defendant arrested.on a superior court
warrant is brought before the JUStice court for initial appearance C~ ... ! ... g_.! . .t in small counties when
the superior court judge is out of town), the procedures under section (a) should be followed and
~he case then transferred to the proper c~u:t for.arraignment. T~is insures that the defendant
is advised of his rights and has the conditions of release determined as soon as possible.
Rule 4.2(c). Ariz. Const. art. 2, §30 (1956) provides a right to a preliminary hearing in all
felony cases except those commenced b¥ grand jury ind~ctment. Thus, this section requires, in add­ition
to the notifications and d7t7rmination~ of sect7on ~a), that the magistrate inform the
defendant of his right to a preliminary hearing and his right to, and the procedures for, waiving
~hat right under Rule 5.l(b). Under Rule S.l(b) the defendant will not be able to waive a
preliminary hearing until he is represented by counsel.
5.1.
PRELIMINARY HEARING.
RIGHT TO PRELIMINARY HEARING: WAIVER: POSTPONEMENT.
RIGHT TO PRELIMINARY HEARING. WHEN A COMPLAINT IS FILED CHARGING THE
DEFENDANT WITH THE COMMISSION OF A FELONY, A PRELIMINARY HEARING SHALL
COMMENCE BEFORE A MAGISTRATE NOT LATER THAN 6 DAYS FOLLOWING HIS INITIAL
APPEARANCE IF THE DEFENDANT IS IN CUSTODY AND NOT LATER THAN 20 DAYS
FOLLOWING HIS INITIAL APPEARANCE IF THE DEFENDANT IS NOT IN CUSTODY UNLESS:
a.
RULE 5.
(1) THE COMPLAINT HAS BEEN DISMISSED:
(2) THE HEARING IS WAIVED: OR
(3) THE MAGISTRATE ORDERS THE HEARING POSTPONED AS PROVIDED IN SECTION (c).
- 9 -
A DEFENDANT WHO IS IN CUSTODY MAY DEMAND THAT THE PRELIMINARY HEARING
BE HELD AS SOON AS PRACTICABLE, WHEREUPON THE MAGISTRATE SHALL COMMENCE
THE HEARING FORTHWITH WITH ONLY SUCH DELAY AS IS NECESSARY TO SECURE
THE ATTENDANCE OF COUNSEL, COURT REPORTER AND NECESSARY WITNESSES.
b. WAIVER. A PRELIMINARY HEARING MAY BE WAIVED BY WRITTEN WAIVER, SIGNED
BY THE DEFENDANT, HIS ~OUNSEL AND THE PROSECUTOR.
c. POSTPONEMENT. IF A PRELIMINARY HEARING HAS NOT BEEN COMMENCED WITHIN
6 DAYS AS REQUIRED IN SECTION (a), THE DEFENDANT SHALL BE RELEASED FROM
CUSTODY AUTOMATICALLY, UNLESS HE IS CHARGED WITH A NON-BAILABLE OFFENSE,
WHEREUPON THE MAGISTRATE SHALL IMMEDIATELY NOTIFY THE CHIEF JUSTICE OF
THE ARIZONA SUPREME COURT OF THE DELAY AND THE REASONS THEREFOR. UPON
MOTION OF ANY PARTY, OR ON HIS OWN INITIATIVE, THE MAGISTRATE MAY POST­PONE
THE HEARING BEYOND THE 20-DAY TIME LIMIT SPECIFIED IN SECTION (a),
UPON FINDING THAT EXTRAORDINARY CIRCUMSTANCES EXIST AND THAT DELAY IS
INDISPENSABLE TO THE INTERESTS OF JUSTICE, ENTERING A WRITTEN ORDER
DETAILING THE REASONS FOR HIS FINDING AND GIVING THE PARTIES PROMPT
NOTICE THEREOF.
Comment: Rule 5 implements Ariz. Const. art. 2, §30 which guarantees a preliminary hearing
to persons accused of a felony by means other than a grand jury indictment.
Rules 5.l(a) and (c). Under Ariz. R. Crim. P. 16-21 the preliminary hearing is supposed to
be held as part of the defendant's initial appearance before a magistrate unless the defendant
waives his right thereto. A delay may be had to secure counsel or for other good cause shownl but
the hearing may not be delayed for more than 6 days. In practice, few if any preliminary hearings
are held "immediately" at the initial appearance. The difficulty of getting counsel, witnesses,
and a court reporter to the courtroom and prepared for a hearing "without unnecessary delay" after
the defendant's arrest, especially outside Maricopa and Pima counties, make an "immediate" hearing
impossible. Especially in drug and other cases in which extensive laboratory tests are necessary,
the prosecution witnesses are not available within 6 days. In practice, the 6-day limit ~s usua~ly
waived. Statistics compiled for the committee by Behavior Research Center show a state-wide
average of 20 days between initial appearance and preliminary hearing; in the one-judge counties.'
an average of 55 days elapses between initial appearance and preliminary hearing.
Rules 5.l(a) and (c) together with Rules 3.l(b), 4.l(c), and 7.2(a) are an attempt
to achieve the purposes of the current rules within the limitations of practicality. The
committee recognizes the importance of having a mechanism by which an accused may test the charges
against him promptly. It also recognizes the inherent physical problems caused by Arizona's size.
and demographic distribution and the fact that if the requirements for the prelimina~y hearing
are too rigid, the prosecution will turn more and more to the grand jury where possible, thereby
eliminating the defendant's only opportunity to test the case against him. ~ ~ei~erg and
Weinberg, The Congressional Invitation to Avoid the Preliminary Hearing: An Analysis of s3o3
of the Federal Magistrates Act of 1968, 67 Mich. L. Rev. 1361 (1969).
The committee further recognizes that the most serious form of injustice occasioned by a
delayed preliminary hearing occurs when the defendant is incarcerated for an undue length of
time without having a chance to prove his innocence. The practical resolution of the prob~e~
therefore seems to be to reduce the incidence of automatic incarceration prior to the preliminarY:
hearing while retaining the strong safeguards of the current rules in cases
where the defendant does remain in custody. Accordingly, the use of a summons is preferred to 11
use of a warrant. The defendant must be brought before a magistrate "without unnecessary delay
after an arrest if a warrant is used. The magistrate is to release him O.R. or on "the least
onerous conditions which will assure his appearance." If he remains in custod~, he may demand
a preliminary hearing "as soon as practicable"--i.e., as soon as counsel and witnesses can be
assembled. In essence, the defendant is given~ same rights as under the current r~les; only
the unrealistic inference of a truly "immediate" hearing is removed. If the defendant is iX:
custody, he can, by demanding a preliminary hearing "as soon as practicable," be give~ a quick
escape from the criminal system; if he does not make such a demand, factors of convenience and
judicial administration are allowed to delay the hearing for up to 6 days.
The committee originally concluded that a 10-day limit would be sufficient to prese~ve the
defendant's rights. However there was substantial sentiment among some members to reta7n the
"immediate" preliminary hearlng requirement of the current rules. The "as soon as practicable'.' _
standard, coupled with a reduction of the overall limit from 10 to 6 days, repre~e~ts t~e c~mmit
tee's final compromise between the competing demand of the ideal and the real criminal Justice
systems.
If a preliminary hearing cannot be held within 6 days, the defendant must be re~e~sed from
custody if he is charged with a bailable offense, i.e., the magistrate must set conditions of
release which the defendant can meet. If he is charged with a non-bailable offense, the magis­trate
must immediately notify the chief justice; the committee concluded th~t a s~nction of
dismissal of the charges would be too severe in this situation and that notification of the
state's highest judicial officer would insure that delay would not occur unless absolutely
unavoidable.
- 10 -
If the defendant is released from custody, the rule allows the date of the preliminary
hearing to be continued upon a showing that extraordinary circumstances exist which make delay
indispensable to the interests of justice. This is the strict continuance standard of Rule e.s·
the committee intends that continuances will be granted neither easily nor often. However, the'
rule does not set any.absolute c~t-off point by which time the preliminary hearing must be held.
see Rule 8.5 (where the same policy is applied to trial continuances). The 90 and 120 day rules
or-Rule 8.2 should exert sufficient pressure on all parties responsible for the completion of
the preliminary hearing to assure that unreasonable delay does not occur.
If a continuance is granted, the hearing should be reset for a specific date to avoid
uncertainty and additional delay.
One source of delay currently experienced in preliminary hearings is eliminated by Rule 6.l(e),
which allows the court to proceed even though the defendant appears without counsel if he has had
a reasonable opportunity to retain a lawyer.
If the hearing is waived.or the charges dismissed (as upon return of a grand jury indictment,
see Wilson v. Garrett, 104 Ariz. 57, 448 P.2d 857 (1966); Carter v. Eyman, 5 Ariz. App. 210, 424
P°:2d ass (1967)) no hearing need be held. .
Rule 5.l(b). The better practice in our courts today is to obtain a signed written waiver
from the defendant when he announces he does not wish a preliminary hearing; this practice is
incorporated into the rule. The defendant may not waive the preliminary hearing without the
consent of an attorney. The committee was concerned with the seemingly insoluble problem of
preliminary hearing waivers prior to appointment of counsel, followed by remand when counsel is
appointed in superior court. The best solution appears to be an absolute requirement of assent
of counsel to all waivers.
The committee intends that the waiver of the preliminary hearing be final in all normal cases.
No provision for conditional waiver--~, waiver contingent upon agreement to a plea in superior
court--is contained in the rule. No conditional waivers should be recognized.
The rule gives the prosecutor the right to demand a preliminary hearing in order to safe­guard
his legitimate interests in washing out at an early stage weak cases and those not deserving
prosecution. It also permits an early determination of a witness's willingness to testify in
court and perpetuation of the testimony of prosecution witnesses who may soon leave the jurisdiction.
5.2. SUMMONING OF WITNESSES AND COURT REPORTER.
THE MAGISTRATE SHALL ISSUE PROCESS TO SECURE THE ATTENDANCE OF WITNESSES AND
SHALL SECURE A COURT REPORTER TO RECORD THE PROCEEDINGS, UNLESS THE REPORTER
IS WAIVED BY BOTH PARTIES.
conunent: This rule parallels Ariz~ R. Crim. P. 22. Its principal function is to provide a
means for subpoenaing defense witnesses, since Ariz. Rev. Stat. Ann. Sl3-182l(B) (2) (1956) permits
the prosecutor to issue process to compel attendance of prosecution witnesses. The authority of
the justice of the peace to order attendance of a witness is contained in Ariz. Rev. Stat. Ann.
§13-1827 (1956); out-of-county witnesses must be subpoenaed by the superior court.
The magistrate has the responsibility for obtaining a court reporter, unless both parties
consent to the absence of a reporter. Under current practice a reporter is.invariably called;
the rule thus makes no major change in the status .quo.
5.3. NATURE OF THE PRELIMINARY HEARING •.
a. PROCEDURE. THE PRELIMINARY HEARING SHALL BE HELD BEFORE A MAGISTRATE
WHO SHALL ADMIT ONLY SUCH EVIDENCE AS IS MATERIAL TO THE QUESTION OF
WHETHER OR NOT PROBABLE CAUSE EXISTS TO HOLD THE DEFENDANT FOR TRIAL.
ALL PARTIES SHALL HAVE THE RIGHT TO CROSS-EXAMINE THE WITNESSES TESTI­FYING
PERSONALLY.AGAINST THEM, AND TO REVIEW THEIR PREVIOUS WRITTEN
STATEMENTS PRIOR TO SUCH CROSS-EXAMINATION. AT THE CLOSE OF THE PROSE­CUTION'S
CASE, INCLUDING CROSS-EXAMINATION OF PROSECUTION WITNESSES BY
THE DEFENDANT, THE MAGISTRATE SHALL DETERMINE AND STATE FOR THE RECORD
WHETHER THE PROSECUTION'S CASE ESTABLISHES PROBABLE CAUSE. THE DEFENDANT
MAY THEN MAKE A SPECIFIC OFFER OF PROOF, INCLUDING THE NAMES OF WITNESSES
WHO WOULD TESTIFY TO OR PRODUCE THE EVIDENCE OFFERED. THE MAGISTRATE
SHALL ALLOW THE DEFENDANT TO PRESENT THE OFFERED EVIDENCE, UNLESS HE
DETERMINES THAT IT WOULD BE INSUFFICIENT TO REBUT THE FINDING OF PROBABLE
CAUSE.
INAPPLICABILITY OF SUPPRESSION MOTIONS. RULES OR OBJECTIONS CALLING FOR
THE EXCLUSION OF EVIDENCE ON THE GROUND THAT IT WAS OBTAINED UNLAWFULLY
SHALL BE INAPPLICABLE IN PRELIMINARY HEARINGS.
b.
- 11 -
Comment: The committee's major concern with respect to the preliminary hearing was the
reported.abuse of the heari~g by defense counsel to subpoena all potential prosecution witn7sses
for examination. The Behavior Research Center study showed that this happens very rarely; in
85% of all preliminary hearings studied the defense called no witnesses; in another 8% only the
defendant himself testified; in only 1% of all cases did the-defense call more than 5 witnesses.
Thus, the extent of this abuse is minimal on a statewide basis.
The corrunittee therefore concluded not to recommend a drastic change in the procedure at the
hearing, such as allowing the magistrate to terminate the hearing whenever he found that probable
caus7 had been demonstrated. On the other hand, the committee felt strongly that the preliminary
hearing should be restored to its original function as an early means of exoneration for a
defendant wr~ngly accused. Its use as a blatant discovery device, even if on a limited basis, is
un~arranted in a procedural system which contains an alternative, such as Rule 16, for fuller,
fairer, less time-consuming discovery. Thus, the corrunittee has attempted to return the preliminary
hearing once again to its role as a preliminary proving ground for the adequacy of the prosecution.
Four devices are utilized as a means for limiting the extent and duration of the hearing:
. 1. An admonition to the magistrate that the evidence be limited to the question of probable
cause, thereby eliminating most questions concerning credibility, affirmative defenses
and other matters traditionally decided at the trial;
2. Specific use of the term "material," providing the magistrate with a basis in the rule
~or refusing to hear testimony which lacks direct probative value on the probable cause
issue;
3. Relieving the magistrate of the obligation of hearing defense evidence, unless the
defendant by specific offer of proof shows its materiality to the existence of probable
cause. Thus, the defense will not be able to call witnesses to the stand for discovery
purposes, but will remain entitled to present testimony which would tend to explain
away the contemplated charge. This provision overrules State v. Essman, 98 Ariz. 228,
403 P.2d 540 (1965) and limits current Ariz. R. Crim. P. 26.
4. Removing motions to suppress evidence from the preliminary hearing altogether. Complex,
sophisticated legal issues cannot be decided at the preliminary hearing stage; the
parties have had little time to prepare, and the magistrate in some cases is not ~ven .
a lawyer. Also, the prosecutor has no effective way to appeal a magistrate's.s~~?rc~sion
order. Rule 5.3(b) thus limits such issues--whether they are called suppressicn rnotio~s
or objections to the "competency" of the evidence--to decision by the trial court. This
section reverses the ruling in State v. Jacobson, 106 Ariz. 129, 471 P.2d 1021 (1970),
and adopts instead the federal standard. Giordenello v. United States, 357 U.S. 480
(1958); Fed. R. Crim. P. S.l(a) (April, 1972).
The defendant retains his right to full cross-examination, including the use of Jencks
statements; however, he will not be entitled, under Rule 16.3(a), to depose any witness who ha~ .
been examined at the preliminary hearing. This coordinates the defendant's discovery opportunities;
he is entitled to one such opportunity, but only one.
The subject of recording and use at trial of preliminary hearing testimony, covered by Ariz.
R. Crim. P. 28, 29, 30 and 31, is contained in Rule 22.J(c).
5.4. DETERMINATION OF PROBABLE CAUSE.
a. HOLDING A DEFENDANT TO ANSWER. IF IT APPEARS FROM THE EVIDENCE THAT
THERE IS PROBABLE CAUSE TO BELIEVE THAT AN OFFENSE HAS BEEN COMMITTED
AND THAT THE DEFENDANT COMMITTED IT, THE MAGISTRATE SHALL ENTER A WRITTEN
ORDER HOLDING THE DEFENDANT TO ANSWER BEFORE THE SUPERIOR COURT AND, UPON
REQUEST, RECONSIDER THE CONDITIONS OF RELEASE.
b. AMENDMENT OF COMPLAINT. THE COMPLAINT MAY BE AMENDED AT ANY TIME TO
CONFORM TO THE EVIDENCE BUT THE MAGISTRATE SHALL NOT HOLD THE DEFE~WANT
TO ANSWER FOR A CRIME DiFFERENT FROM THAT CHARGED IN THE ORIGrnAL Cu~·IT'LAI~:7•
c. EVIDENCE. THE FINDING OF PROBABLE CAUSE SHALL BE BASED ON SUBSTANTIAL
EVIDENCE, WHICH MAY BE HEARSAY IN WHOLE OR IN PART IN THE FOLLOWING FORMS:
(1)
(2)
WRITTEN REPORTS OF EXPERT WITNESSES;
DOCUMENTARY EVIDENCE WITHOUT FOUNDATION, PROVIDED THERE IS A SUBSTAN­TIAL
BASIS FOR BELIEVING SUCH FOUNDATION WILL BE AVAILABLE AT TRIAL
AND THE DOCUMENT IS OTHERWISE ADMISSIBLE;
EXPECTED TESTIMONY OF A WITNESS, EXCEPT IDENTIFICATION TESTIMONY
NECESSARY TO CONNECT THE DEFENDANT WITH THE CRIME, PROVIDED
(3)
- 12 -
(i) THE TESTIMONY WAS PERSONALLY RELATED BY THE SOURCE TO THE
TESTIFYING WITNESS;
(ii) THERE IS A SUBSTANTIAL BASIS FOR BELIEVING THE SOURCE TO BE
CREDIBLE, AND FOR BELIEVING THAT THERE IS A FACTUAL BASIS FOR
THE INFORMATION FURNISHED;
(iii) THERE IS A SUBSTANTIAL BASIS FOR BELIEVING THE SOURCE WILL BE
AVAILABLE TO TESTIFY AT THE TRIAL; AND
(iv) THE LAW ENFORCEMENT OFFICER OR OFFICERS WHO DID THE PRINCIPAL
INVESTIGATION OF THE INCIDENT AND ARRESTED THE DEFENDANT ARE
AVAILABLE FOR CROSS-EXAMINATION.
THE MAGISTRATE SHALL CONSIDER THE FACT THAT EVIDENCE IS HEARSAY IN MAKING
HIS DETERMINATION OF PROBABLE CAUSE.
d. DISCHARGE OF THE DEFENDANT. IF IT APPEARS FROM THE EVIDENCE THAT THERE
IS NOT PROBABLE CAUSE TO BELIEVE THAT AN OFFENSE HAS BEEN COMMITTED OR THAT THE
DEFENDANT COMMITTED IT, THE MAGISTRATE SHALL DISMISS THE COMPLAINT AND
DISCHARGE THE DEFENDANT.
CoIYUTient: Rule 5.4(a). Ariz. R. Crim. P. 33(A) requires the magistrate actually to find that
an offense has been committed; the proposed rule requires him only to find probable cause to
believe that it has been committed. The committee could perceive no reason to differentiate
between the findings as to the crime and the defendant.
The rule intends no change in the standard for determining probable cause. See,~' Drury v.
~' 107 Ariz. 124, 483 P.2d 539 (1971); In Re Anonymous, 14 Ariz. App. 466, 484 P.2d 235 (1971).
The committee has deleted the detailed provisions of Ariz. R. Crim. P. 34 (form of commitment
order) and 37 (examination in another county) as unnecessary. See Form IX for a standard. bind­over
order. It dropped all reference to trial in the justice court, Ariz. R. Crim. P. 32(C)
because Rule 5.l(a) provides for a preliminary hearing for a felony only, and Rule 5.4(b) gi~es
the magistrate no power to amend the crime charged.
Rule 5.4(b). The magistrate--whether a justice, judge, justice of the peace, or city
magistrate--is authorized to amend the complaint to corr7ct onlr minor mistakes in allegat~ons
of fact. He has no power to amend the charge; he must either bind the defendant over or dismiss
the complaint. Therea~ter the prosecutor may fil7 another.complaint, This is the current Arizona
rule. see Ariz. R. Crim. P. 32(A); State v. Colvin, 81 Ariz. 388, 307 P.2d 98 (1957); Application
of Willraffis, 85 Ariz. 109, 333 P.2d 280 (1958); State v. Bowman, 103 Ariz. 482, 445 P.2d 841
(1968) •
Rule s.4(c). The coIYUTiittee proposes extensive use of hearsay at preliminary hearings; this
follows the national trend away from the strict common law hearsay limitations. There is no
constitutional requirement that hearsay be excluded from a preliminary probable cause proceeding.
see Costello v. united States, 350 U.S. 359 (1956) (upholding a grand jury indictment based
solely upon hearsay testimony of three government agents). The court stated unequivocally that
the fifth amendment does not lay down the standards to be followed by the grand jury. Id., at
363•
see Holt v. united States, 218 U.S. 245 (1910). This should be even more true of-a prelimi­nary
hearing, which is not a creature of the constitution. ~Hurtado v. California, 110 u.s.
516 (1884).
In Washington v. Clemmer, 339 F.2d 715, 724, aff'd on appeal from remand, 339 F.2d 725
(D.C. Cir. 1964), then Judge Burger, citing an address by then Chief Justice Warren, stated:
Few legal concepts have been more universally accepted than
the proposition that "competent" evidence before a magistrate
to establish probable.cause at that stage is very different
from "competent" evidence in the context of a criminal trial.
Accord warren, Address to Annual ~eet~ng of the Am7ric~n Law Insti~ute, 41 A.L.I. Proc. 31 (1964).
The u.s. District court for the District of.Coll;lmhia, in U.S. v. Hinkle, 307 F. Supp. 117, 121
(l969), interpreting Fed. R. Crim. P. S(c) in light of the 1968 Federal Magistrates Act, .18
u.s.c.A. §3060 (1969) noted the above lanquage, stating that:
This court is in complete agreement with the proposition that
probable cause may be demonstrated other than from the mouth
of the complaining witness.
Among the federal courts, only the Second Circuit has looked unkindly upon a grand jury's use of
hearsay. united states v. Umans, 368 F.2d 725 (2d ~ir. 1966), cert. dis~issed as improvidently
granted, 389 u.s. 80 (1967); Un~ted States v. Arcuri, 405 F.2d 691 (2d Cir. 1968); United States
v. Leibowitz, 420 F.2d 39 (2d Cir. 1969).
- 13 ..
The arguments in favor of allowing hearsay at the preliminary hearing are largely pragmatic
ones. Ways must be found to make the proceeding less cumbersome if its advantages to both prose­cution
and defense are not to be lost because of the ease and speed of the grand jury procedure.
See Weinberg and Weinberg, The Con ressional Invitation to Avoid the Prelimina Hearin: An
Analysis of S303 of the Federal Magistrates Act of 1968, 67 Mic • L. Rev. 1361 1969). Further­more,
permitting the investigating officer to relate the prospective testimony of other witnesses
alleviates a major economic and psychological burden on the victim and other persons directly
involved with the offense. The magistrate can be expected to give appropriate weight to different
forms of testimony.
The.objections to the use of hearsay are two-fold. The first is the loss of discovery
opportunities at the preliminary hearing. See United States v. Blue, 342 F.2d 894, 901 (D.C.
Cir. 1964). However, as noted in the comme~to Rule 5.3, the committee makes no attempt to
retain the discovery function of the preliminary hearing. The second objection is based on the
importance to the defendant of being bound over for trial--loss of liberty, the need to make bond,
unfavorable publicity, and the cost and embarrassment of a public trial--and the need for the most
reliable information on which to base that determination. see comment, 15 Kans. L. Rev. 374, 380
(1967); Joint Anti-Fascist Refugee Committee v. McGrath, 3-:ri-u.s. 123 (1951). ~~Costello,
supra.
The nationwide trend seems to be away from both the suspicion of hearsay and the need for
extensive preliminary hearing testimony. In recent months the U.S. Supreme Court announced
amendments to Fed. R. Crim. P. 5.1 permitting a finding of probable cause based "upon substantial
evidence which may be hearsay in whole or in part." The experience of the D.C. and Second Circuits
seems to show (despite the fulminations of the latter) that in the vast majority of cases the
preliminary hearing can utilize a relatively relaxed standard for the use of hearsay, with a few
fundamental safeguards. This is the experience of the two members of the comrnittee and staff who
have practiced in the District of Columbia. The committee is convinced that the defendant,
represented by competent counsel with a full opportunity vigorously to cross-examine the witnesses,
will not be prejudiced by this rule.
Sections (1) and (2) represent only minor dilutions of the hearsay rule. One of the principle
causes of preliminary hearing delays at present is the unavailability of police experts, especially
lab chemists for testimony in drug cases. Section (1) allows an expert's testimony to be presented
by means of a written report. The report will be admissible only for those matters as to which
the writer qualifies as an expert. The committee does not require a showing that the expert be
available to testify at trial, because the expert's conclusions will usually be stipulated to
(see Rule 17.6 and Form XIX). Even if the reporting expert is unavailable, the state can
produce another to substantiate his conclusions at trial.
Documentary evidence may be admitted without proper foundation under section (2), upon a
satisfactory showing that the foundation will be available at the trial.
Section (3) goes further, however, allowing witnesses' expected testimony to be related by
hearsay. The committee includes a host of safeguards however. Two of them are limitations
contained in the January 1, 1970 Preliminary Draft of amendments to Fed. R. Crim. P. S.l(a), but
not included in the amended federal rule:
a substantial basis for believing the source of the hearsay
to be credible and for believing that there is a factual basis
for the information furnished.
The committee intends by this language to incorporate the ordina:y standa7ds whic~ a reason~ble
man instinctively applies to hearsay in everyday life--weighing it according to his evaluat~on of
its source and against the other facts known to him. In addition, only first-hand hearsay is
permitted, i.e., an out-of-court statement which the testifying witness has heard directly from
the actual witness. "Eyeball" identification testimony cannot be introduced through
hearsay--the witness who actually saw the defendant steal a car must testify although the ?wner
of the car need not come down to identify the car and affirm that it was stolen. The c~mmittee
intends to require the prosecution to present at least one witness who can personallr tie the
defendant to the criminal event, unless probable cause can be established entirely w7thout such
personal identification. Also, the investigating and arresting officers must be availa~l7 ~o
testify in person. The committee felt strongly that the rules should preclude the possibility of
a specially-trained liaison officer presenting all preliminary hearing testimony on behalf of.the
entire police department on the basis of a cursory review of the departmental report. In addi­tion,
the investigating and arresting officer have the best information concerning the events
and will be helpful to the magistrate in evaluating other hearsay presented. Finally, the
magistrate is not required to credit the hearsay testimony admitted. At the close
0~
the
prosecutor's case, he must evaluate all the evidence, viewing each item in terms of.it~ own ms
credibility and rule accordingly. counsel can help him .in this det~rrnination by bringing proble
connected with tenuous hearsay to his attention.
Rule 5.4(d). This section follows Ariz. R. Crim. P. 32(B).
S.S. REVIEW OF PRELIMINARY HEARING.
a. GROUNDS. A MAGISTRATE'S DETERMINATION TO BIND OVER A DEFENDANT TO
SUPERIOR COURT SHALL BE REVIEWABLE ONLY BY MOTION FOR A NEW FINDING
- 14 -
OF PROBABLE CAUSE ALLEGING THAT THE DEFENDANT WAS DENIED A SUBSTANTIAL
PROCEDURAL RIGHT OR THAT NO CREDIBLE EVIDENCE OF GUILT WAS ADDUCED
ALLEGING SPECIFICALLY THE WAYS IN WHICH SUCH EVIDENCE WAS LACKING.
b. TIMELINESS. A MOTION UNDER RULE 5.5(a) MAY BE FILED NO LATER THAN
10 DAYS AFTER THE PRELIMINARY HEARING TRANSCRIPT HAS BEEN FILED.
c. EVIDENCE. REVIEW OF THE EVIDENCE SHALL BE LIMITED TO THE TRANSCRIPT
OF THE PROCEEDINGS.
d. RELIEF. IF THE MOTION IS GRANTED, THE CASE SHALL BE RETURNED TO THE
MAGISTRATE WITH APPROPRIATE INSTRUCTIONS. UNLESS A NEW PRELIMINARY
HEARING IS COMMENCED WITHIN 10 DAYS AFTER ENTRY OF THE REMAND ORDER,
THE CASE SHALL BE DISMISSED. .
Comment: Rule S.S(a). This provision eliminates the dichotomy between motions to quash
(for legal insufficiencies) and petitions for writ of habeas corpus (for factual insufficiencies)
under current Arizona law. ~'~'State v. Colvin, 81 Ariz. 388, 307 P.2d 98 (1957); State
v. Abbott, 103 Ariz. 336, 442 P.2d 80 (1968). A single remedy--a motion to repeat the probable
cause proceeding--is created.
The grounds for the motion include legal insufficiency, tempered as under Ariz. R. Crim. P.
36 by the requirement of a "substantial" de~ect, and factual insufficiency so great as to result
in a deprivation of due process of law. This follows the current standard applied by reviewing
judges; if "some evidence" of guilt appears in the transcript, the habeas corpus petition is
denied. The committee concluded that the "credible evidence" standard is a more restrictive
review standard than "reasonable evidence." Note also that the reviewing court's standard is
far different from that imposed on the magistrate--"substantial evidence." This is appropriate
in view of the different functions of fact-finding and reviewing courts.
substantive defects in the prosecution not remediable by remand for futher evidence can be
raised by motion under Rule 17.7(b).
Rule 5.5(b). A strict early time limit is imposed on filing the motion in order to avoid
disruption of later proceedings and to eliminate its use as a delay device. The motion is due at
the same time as the defendant's disclosures,~ Rule 16.2, and may be disposed of at or before
the omnibus hearing which is to be held about 10 days later. ~Rules 5.6, 17.3 and 17.4.
Rule 5.5(c)., This sectio~ ~imits rev~ew of the s~ffi?iency of the e~idence to the transcript
of the proceedings at the preliminary hearing. No affidavits or other evidence may be considered
by the superior court in reviewing the bind-over; any new evidence will be appropriate for trial,
or a motion to dismiss under Rule 17.7(b), but the probable cause determination should not be
upset by later-discovered facts.
An attack of the preliminary hearing procedures, however, may be established by evidence
outside the record before the magistrate.
Rule 5.5(d) •. The defendant's remedy is not dismissal of the charges, but only a remand for
reconsideration on appropriate instructions; the remedy can ripen into dismissal if a timely
reconsideration is not held.
S.6. TRANSMITTAL AND TRANSCRIPTION OF RECORD.
WITHIN 3 DAYS AFTER WAIVER OR CONCLUSION OF THE PRELIMINARY HEARING, THE
MAGISTRATE SHALL TRANSMIT ALL PAPERS AND RECORDS IN THE CASE, TOGETHER WITH
A PRESCRIBED TRANSMITTAL FORM, TO THE CLERK OF THE SUPERIOR COURT. THE
REPORTER SHALL FILE THE TRANSCRIPT IN THE SUPERIOR COURT NO LATER THAN 20
DAYS AFTER THE COMPLETION OF THE HEARING IF EITHER PARTY REQUESTS THAT THE
TRANSCRIPT BE PREPARED.
comment: An unnecessary source of wasted time under the current rules is the transmittal of
the justice court record under the "without delay" standard of current Ariz. R. Crim. P. 35(A).
The Behavior Research center study showed that on the average, it takes 35 days to transfer the
magistrate's papers, prepare and file an info:m~tion and ~et a~d hold the arraignment--fully
22%
of the entire time needed to process a cri~inal.case in Arizona from the initial appearance
to sentencing. These rules will provid~ a maximum interval of 15 days between preliminary hearing
and arraignment. The committee is convinced that 3 days is adequate for the magistrate to assemble
and mail or deliver the record in every case; the prosecutor is allowed 5 days from the bind-over
order within which to file the information. The arraignment is to be held within 10 days there­after.
The rule contemplates the use of~ sta~dard form noting the items transmitted. The need for
such a form has been brought to the committees attention by superior court clerks who are incon­venienced
by variations in the procedure~ of different justice of the peace precincts. The court
reporter is required to file the transcript at a time which will correspond with the prosecutor's
disclosure obligation -- 10 days after the ~rraignmen~. See Rule 16.1. This is the same time
limit imposed on the reporter. for transcribing grand JUry proceedings under Rule 12.8(c).
- 15 -
RULE 6.
III. RIGHTS OF PARTIES
ATTORNEYS, APPOINTMENT OF COUNSEL.
RIGHTS TO COUNSEL AND OTHER DEFENSE SERVICES; WAIVER OF RIGHTS TO COUNSEL.
a. RIGHT TO BE REPRESENTED BY COUNSEL. A DEFENDANT SHALL BE ENTITLED TO BE
REPRESENTED BY COUNSEL IN ANY CRIMINAL PROCEEDING. THE RIGHT TO BE
REPRESENTED SHALL INCLUDE THE RIGHT TO CONSULT IN PRIVATE WITH AN ATTORNEY,
OR HIS AGENT, AS SOON AS FEASIBLE AFTER A DEFENDANT IS TAKEN INTO CUSTODY,
AT REASONABLE TIMES THEREAFTER, AND SUFFICIENTLY IN ADVANCE OF A PROCEEDING
TO ALLOW ADEQUATE PREPARATION THEREFOR. ABSENT A KNOWING AND INTELLIGENT
WAIVER, NO PERSON MAY BE INCARCERATED FOR ANY OFFENSE UNLESS HE WAS
REPRESENTED BY COUNSEL AT TRIAL.
b. 'RIGHT TO APPOINTED COUNSEL. AN INDIGENT DEFENDANT SHALL BE ENTITLED TO
HAVE AN ATTORNEY APPOINTED TO REPRESENT HIM IN ALL CRIMINAL PROCEEDINGS
FOR ANY FELONY AND FOR ANY OTHER OFFENSE, HOWEVER DENOMINATED
(1) FOR WHICH HE IS CONSTITUTIONALLY ENTITLED TO TRIAL BY JURY; OR
(2) WHICH IS PUNISHABLE BY LOSS OF LIBERTY, EXCEPT THOSE OFFENSES FOR
WHICH SUCH PUNISHMENT IS NOT LIKELY TO BE IMPOSED. THE COURT MAY
APPOINT COUNSEL TO REPRESENT AN INDIGENT IN ANY OTHER CRIMINAL PRO­CEEDING
IN WHICH IT CONCLUDES THAT THE INTERESTS OF JUSTICE SO REQUIRE.
c. WAIVER OF RIGHTS TO COUNSEL. A DEFENDANT MAY WAIVE HIS RIGHTS TO COUNSEL
UNDER (a) AND (b), IN WRITING, AFTER THE COURT HAS ASCERTAINED THAT HE
KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY DESIRES TO FOREGO THEM AND THAT
HE IS COMPETENT TO DO SO. WHEN A DEFENDANT WAIVES HIS RIGHTS TO COUNSEL, THE
COURT MAY APPOINT AN ATTORNEY TO ADVISE HIM DURING ANY STAGE OF THE PROCEEDINGS.
SUCH ADVISORY COUNSEL SHALL BE GIVEN NOTICE OF ALL MATTERS OF WHICH THE DEFEND­ANT
IS NOTIFIED, BUT, IF THE DEFENDANT REQUESTS, SHALL NOT BE SEATED AT COUNSEL
TABLE AT TRIAL.
d. OTHER DEFENSE SERVICES.
(1) INVESTIGATOR. THE COURT MAY APPOINT AN INVESTIGATOR TO ASSIST AN
ATTORNEY, OTHER THAN THE PUBLIC DEFENDER, APPOINTED TO DEFEND AN
INDIGENT, UPON A FINDING THAT THE SERVICES OF AN INVESTIGATOR ARE
NECESSARY TO.THE PRESENTATION OF AN ADEQUATE DEFENSE.
(2) EXPERT WITNESS. THE COURT MAY APPOINT AN EXPERT WITNESS TO ASSIST
SUCH ATTORNEY WHENEVER THE PROSECUTOR HAS ANNOUNCED HIS INTENTION
TO CALL AN EXPERT AT TRIAL, UPON A FINDING THAT THE TESTIMONY OF AN
OPPOSING EXPERT ON THE SAME MATTER IS NECESSARY TO THE PRESENTATION
OF AN ADEQUATE DEFENSE. THE NUMBER OF EXPERT WITNESSES APPOINTED
FOR THE DEFENDANT SHALL NOT EXCEED THE NUMBER ANNOUNCED BY THE
PROSECUTOR.
(3) COMPENSATION. THE COURT SHALL ORDER A REASONABLE FEE PAID TO ANY
INVESTIGATOR OR EXPERT WITNESS APPOINTED UNDER THIS PROVISION.
e. UNREASONABLE DELAY IN RETAINING COUNSEL. IF A NON-INDIGENT DEFENDANT, OR
AN INDIGENT DEFENDANT WHO HAS REFUSED APPOINTED COUNSEL IN ORDER TO RETAIN
PRIVATE COUNSEL, APPEARS WITHOUT COUNSEL AT ANY PROCEEDING AFTER HAVING
BEEN GIVEN A REASONABLE OPPORTUNITY TO RETAIN COUNSEL, THE COURT MAY
PROCEED WITH THE MATTER, WITH OR WITHOUT SECURING A WRITTEN WAIVER OR
APPOINTING COUNSEL UNDER SECTION (c) TO ADVISE THE DEFENDANT DURING THAT
PROCEEDING.
f. WITHDRAWAL OF WAIVER. A DEFENDANT MAY WITHDRAW A WAIVER OF HIS RIGHTS TO
COUNSEL AT ANY TIME. HE WILL NOT BE ENTITLED TO REPEAT ANY PROCEEDING
PREVIOUSLY HELD OR WAIVED SOLELY ON THE GROUNDS OF THE SUBSEQUENT APPOINT-MENT
OR RETENTION OF COUNSEL.
Comment: This rule sets forth the defendant's basic rights to legal representation.
Rule 6.l(a). This section entitles the defendant to the aid of counsel during all phases of
the criminal process from an arrest or grand jury proceeding and initial appearance through a .
preliminary hearing and competency hearing if any trial or plea, sentencing hearing, sent~~c~ng,
appeal, post conviction proceeding and pr~bation ;evocation. See comments to Rules 12.5, • '
4.2, 5.1, 11.7, 20.2, 29.9, 34.5, 3s.s, and 30.7. The second sentence is intended to serv:h~~ld
a directive to law enforcement officials that defense attorneys, their staff, and ~xperts uired
be given full access to clients, subject only to reasonable time and pl.ace limitations req
6.1.
- 16 -
for orderly and efficient jail operations and the maintenance of security. This should alleviate
the difficulty, reported by a number of committee members, in communicating with jailed clients.
The last sentence contains the constitutional safeguard required by Argersinger v. Hamlin, u.s.
~-' 40 u.s.L.W. 4679 (June 12, 1972). ---
Rule 6.l(b). This provision is adopted from Gideon v. Wainwright, 372 U.S. 335 (1963)1
Argersinger v. Hamlin, supra1 ABA, Standards Relating to Providina Defense Services §4.1 (Approved
ozaft, 1968) and Burrage v. Superior Court, l05 Ariz. 53, 459 P.2 313 (1969). Paragraph (1)
requires appointment of counsel for indigent defendants who are constitutionally entitled to a trial
by jury--i.e., those punishable by no more than 6 months, $300 or both. See Dunaan v. Louisiana,
391 u.s. ~(1968); Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d""479 (1966); State v.
Reagan, 103 Ariz. 287, 289, 440 P.2d 907, 909 (1968). Prior to Argersinger, Arizona required
appointment of counsel only where the maximum punishment exceeded $500 in fines, 6 months, or
both, or where"the complexity of the case is such that the ends of justice require representationr"
Burrage, suera, at 55, 459 P.2d at 315. That standard precluded appointment of counsel in some
cases in which a defendant was entitled to a jury trial even though the right to counsel is
considered to be more fun~am7ntal than the right t? a jury. See Argersinger, sdpfa, 40 u.s.L.W.
at 4681. Given the holding in Argersinger forbidding incarceration unless the e endant had
or waived counsel, and the discussion therein concerning the fundamental unfairness of forcing
an indigent layman to conduct his own defense before a jury, id., 40 U.S.L.W. at 4685 (Powell, J.,
concurring); see also~., 40 U.S.L.W. at 4681 (majority opinIOn); Gidecn v. Wainwright, 372 U.S.
335 at 344, (I9'63r;-I°t is necessary to.require appointment of counsel for indigents constitutionally
entitled to a jury trial.
Paragraph (2) is adopted from the standard suggested in ABA, Standards, 1upra, and apparently
approved in Argersinger, supra, 4~ U.S.L.W. at 4683-4684 (~Burger, C.J., concurring). It
stops short of requiring the appointment of counsel in every criminal case (see Fed. R. Crim. P.
44(a)}, or even in every case for which the legislature has authorized a jair-Bentence as punish-ment.
There are two different approaches which can be taken to implementing the bare Argersinger
holding that a defendant must be represented by counsel before he can be imprisoned. The.first
requires the judge to look individually at each person who comes before him, and, on the basis 1
of brief information elicited from the defendant and the prosecutor, determine whether he will
sentence this defendant to a jail sentence if he is convicted, appointing counsel or securing a
waiver of counsel if he finds the likelihood sufficiently great. The second approach requires
the judge to look at the offense charged rather than at the particular defendant, determining in
a general way which charges are likely to result in a jail sentence (~,in 20% of all cases),
appointing counsel (or securing a waiver) for all such offens~s and foregoing the use of jail
sentences for all other offenses (unless, perhaps, the prosecutor suggests in a particular case
that there are aggravating circumstances sufficient to justify a jail sentence, and, hence,
appointment of counsel).
The committee has chosen the second approach as the standard to incorporate into Rule 6.1
(b) (2). It finds individualized pret~ial sentencing determinations fraught with problems of
prejudgment, abuse, and over-selectivity. Junker, The Right to Counsel in Misdemeanor Cases, 43
wash. L. Rev. 685, 709-710 (1968); cf. Gregg v. United States, 394 u.s. 489 (1968) (forbidding
disclosure of the pre-sentence report to the judge prior to trial). Even if the individualized
decision were made by someone other than the trial judge, the mere fact that the defendant appears
with appointed counsel might itself affect the trial judge's neutrality. Such a procedure would
also substantially delay the already overburdened misdemeanor courts and might actually create an
incentive for non-indigents to appear without a l~wyer (if they bring a lawyer to court, they can
be put in jail; if they do not the chances are substantially less). Establishing categories of
offenses will eliminate many of these di~fi?ulties. It.is clear that a jail term is used signifi­cantly
more often as punishment for conviction of certain offenses such as reckless driving,
leaving the scene of an accident, petty theft, and for recidivist offenders. Unless enacted
by the legislature, the categories would be non-binding, leaving the court free to appoint
counsel in any case where necessary in the interests of justice or where the prosecutor informs
the court that he will ask for a jail sentence.
unless Argersinger is extended,~ concurring opinion of Mr. Justice Powell, Argersinger,
Ruora,
40
u.s.L.W. at 4686, there is no rightdtbo appointed counisel for a jury trial granted by
~te (as in justice courts) but not.secure Y the constitut on; any other rule would enable a
defendant to bootstrap himself to appointed counsel by demanding a jury. However, where the
interests of justice require, the judge may appoint co~nsel in cases not encompassed within the
other provisions of Rule 6.l(b}. ~Burrage v. Superior Court, supra.
counsel may be appointed at any point in the proceedings.
Rule 6.l(c). section (c} provides the stan~ards for waiver of the rights to counsel, applicable
throughout these rules. It adopts the constitutional standard set down in Johnson v. zerbst,
J04 u.s. 458 (1938); Von Moltke v. Gillies, 332 U.S. 708 (1948); Miranda v. Arizona, 384 u.s.
436
(1966). Argersinger v. Hamlin, supra; and State v. Martin, 102 Ariz. 142, 426 P.2d 639 (1967).
Generally,'a defendant must be.advised of the charges against hi~, of the possible maximum sentence,
whether if convicted he is likely to be sentencedto a term of imprisonment, and of his rights
to be r~presented by ~ounsel and to have counsel appointed if he is indigent. He must know "exactly
- 17 -
what he• • • [is] doing when he waive[s] his right to counsel." Martin, supra, at 146, 426
P.2d at 643. The portion of Von Moltke, supra, at 724, stating that the judge should advi~e .
defendants waiving counsel of possible defenses and mitigating circumstances has not been included
as a constitutional requirement in subsequent cases. see Miranda, supra, and Boykin v. Alabama,
395 u.s. 238 (1969). -
A defendant must be competent to waive his rights, but it is not the committee's intent to
require a professional mental health examination before a waiver can be accepted, except when the
trial judge has "reasonable grounds to believe a defendant to be insane or mentally defective."
See Arizona v. Westbrook, 384 U.S. 150 (1966); State v. Westbrook, 101 Ariz. 206, 417 P.2d 530
1I966); State v. Martin, supra; cf., Rule 11.
The second sentence allows but does not require the court to appoint advisory counsel whenever
a defendant seeks to proceed prose. A number of cases have recognized a defendant's absolute
right to represent himself,~' united States v. Plattner, 330 F.2d 271 (2d Cir. 1964); State v. -
Martin, supra; State v. Betts, 2 Ariz. App. 27, 406 P.2d 229 (1965). but this right is not infringed
by appointment of advisory counsel, especially where his existence will be concealed from the
jury at the defendant's request. See Note, 76 Harv. L. Rev. 579, 585 (1963). The committee
suggests that'the better practice rs-to appoint advisory counsel when a defendant indicates ~e
wishes to waive counsel, to consult with him regarding the proposed waiver; it does not require
the practice by rule. Cf. ABA, Standards, supra, at §7.3; Mazor, The Right to be Provided Counsel,
9 Utah L. Rev. SO, 76 (1964).
Rule 6.l(d). This rule is intended to equalize, so far as possible within the limits of
existing statutes, the tactical resources of rich and poor and prosecution and defense in criminal
trials. It provides for the appointment of investigators or expert witnesses for a defendant
in a limited but significant number of cases.
The commentators have uniformly urged that indigent defendants be afforded ancillary defense
services. Attorney General's Committee, Report on Povert~ and the Administration of Federal
Criminal Justice (1963); ABA, Standards Relatin to Provi in Defense Services §l.5 (Approved
Draft, 1968). The assistance of counsel is o ten a meaningless right in the absence of means of
developing convincing evidence.
Furnishing the indigent defendant wlth a lawyer is not enough: the
best lawyer in the world cannot competently defend an accused person ~f the
lawyer cannot obtain existing evidence crucial to the defense,~, if the
defendant cannot pay the fee of an investigator to find a pivotal missing
witness or a necessary document, or that of an expert accountant or mining
engineer or chemist. United States v. Johnson, 238 F.2d 565, 572 (2d Cir. 1956)
(Frank, J., dissenting).
Congress in the 1964 Federal Criminal Justice Act, has provided a procedure by which.a defendant
can receive authorization from the trial court, in an ex parte hearing, to obtain the a~s7stance
of investigators and expert witnesses. 18 u.s.c. S3006A(e) (Cum. Supp. 1971). The provisio~ has
been acclaimed,~' Note, Assistance in Addition to counsel for Indigent Defendants, 16 Vill.
L. Rev. 323 (1970), and identical statutes have been enacted in a number of states,~' Md.
Annot. Code S26:12(B) (Cum. Supp. 1971); N.H. Rev. Stat. Ann. 604-A:6 (Cum. Supp. 1971). The
ABA has stated specifically that provision for such services is an essential element of any program
for providing e~fective legal assistance to the indigent. ABA, standards, supra, at §1.S.
The desirability of providing counsel representing indigents with the assistance of ex~erts
and investigators is undisputed. The principal problem in Arizona is the absence of ext:>licit
legislative authorization for such assistance. Both the supreme court and court of appeals
have rejected constitutional arguments for expert assistance, State v. Crose, 88 Ariz. 389, 357
P.2d 136 (1960) (right to counsel); State v. Reams, 104 Ariz. 472, 455 P.2d 446 (1969) (equal
protection), and arguments for expenses related to trial (~,process server) based on the
inherent power of the court. State v. Superior court, 2 Ariz. App. 466, 409 P.2d 750 (1966).
In State v. Bowen, 104 Ariz. 138, 140, 449 P.2d 603, 605 (1969), the court stated:
Until the power of the courts to order payment of defense exper~s is
authorized by appropriate legislation, we cannot judicially legislate
to enlarge the scope of the term "counsel" to encompass expert testimony.
If the court is willing to retreat from the broadest reading of the~ dictum quoted above,
the authorization of payment for counsel contained in Ariz. Rev. Stat. Ann. Sl3-1673 (Cum. Supp.
1971) can support payment of counsel's auxiliary staff authorized by Rule 6.l(d). The statute
reads as follows:
When counsel is appointed by the court and represents the de'fend~nt in .
either a criminal proceeding or insanity hearing, he shall be paid by h
the county in which the court presides provided that in th~~ebma~~ers w ~~e
a public defender is appointed no compensation shall be pai Y he count·
C i
· d d f ndant shall be sue amoun
ompensat on for such services rendere to e e . dd d)
as the court in its discretion deems reasonable. (Empha~is a e •
- 18 -
The authority to provide expert assistance can be derived from the emphasized sentence, which
authorizes the court to compensate counsel "in its discretion" for "such services" rendered.
Presumably, in a sympathetic court, appointed counsel could hire expert witnesses out of his
own pocket if it were necessary to the conduct of an adequate defense, and be reimbursed by the
court, which without abusing its discretion could find that the securing of witnesses was part .
of the "services" of counsel. If the statute grants the court such discretion, a fortiori, it
must permit the court to appoint the _expert directly. It can, therefore, be read to permit the
appointment of experts in cases where such assistance is an integral element of the services
of counsel.
The/argument is even stronger in the case of investigators. If the court denies an appointed
attorney the use of an investigator, a conscientious lawyer will take the responsibility of
investigation upon himself. Time spent on such tasks is time spent on preparation for trial and
clearly comes within the purview of Ariz. Rev. Stat. Ann. §13-1673 (Cum. Supp. 1971)--and attorney
time comes at a far higher hourly rate than the time of an investigator.
A broad reading has been given to a similar appointment statute in another jurisdiction
in order to obtain a result required by fundamental fairness. In State v. Hancock, 164 N.W.2d
330 (Iowa 1969), the Iowa Supreme Court reversed a conviction of uttering a forged instrument on
the ground that the trial court had abused its discretion in failing to appoint a handwriting
expert at the defendant's reque~t. The Iowa statute, I?wa Cod7 Ann. 775.5 (Cum. Supp. 1971), only
authorized payment of compensation to an attorney for his services (although the statute specifically
included "investigation"·as a compensable element of those services). The Iowa court noted the
essential role of expert testimony in the case--both parties had counsel and witnesses (personal
identification and alibi), but only one side had a handwriting expert. In such circumstances it
reasoned, the right to counsel is meaningless without the assistance of a countervailing expe;t.
Rule 6.l(d) is intended to provide the trial judge with no more than the narrow appointive
power suggested by the Iowa court. The court may appoint an investigator only when the service
is absolutely necessary to the effective conduct of the defense. The language should be construed
to require the court to consider all the- sources of information available to the defendant (such
as discovery under Rule 16) as well as all other evidence already at his disposal. Only when the
services of an investigator are essential to the defense should they be provided.
with respect to expert witnesses, the proposal is even stricter. An expert can be appointed
only when the prosecution has announced an intention to use experts of its own and opposing expert
testimony is necessary to an adequate defense. The fact that the prosecution-plans to use experts
is thus not sufficient in itself to permit the court to appoint a defense expert.
The argument that Ariz. Rev. Stat. Ann. §13-1673 (Cum. Supp. 1971) provides a trial court
with a limited power to appoint experts has been explicitly raised in only one Arizona case. In
state v superior court, supra' at 472, 409 P.2d at 755-756 it was rejected by the court of
appeals.in an opinion grounde in the principle of stare decisis and the holding of State v.
~'supra:
In state v. Crose, our Supreme Court did not gainsay that "***the
assistance of experts in advance of trial often lies at the very
heart of a successful defense." ••• We do not think that our
supreme Court intends that a trial court have the right to grant
this type of assistance to one defendant and deny it to another
when it is equally necessary. If A.R.S. 13-1673 has the broad
meaning now contended for it, State v. Crose would have been
decided differently.
The reasoning is open to serious question since the applicability of the statute was neither
presented nor considered in the~ case~ the defendant c~nte~ded only that the right to appointed
experts was grounded in the Arizona and Un7ted States constituti~ns and made no argument based on
the statute and the role of experts as ancillary to that of appoi~ted counsel. The holding of
State v. superior court, supra, thus rests on a very weak foundation.
The most common request for expert services for an indigent has always been for psychiatric
witnesses. see state v. Crose, supra. However, the right to appointed mental health experts has
been provided by statute, Ariz. Rev. Stat. Ann. §§13-1621 and 13-1621.01 (Cum. Supp. 1971), and
carried forward in Rule 11. Consequently, Rul7 6.l(d~ is limited to the much smaller class of
cases in which a different type of expert testimo~y will be useful to t~e prosec~tion and rebuttal
of it necessary to the defense. Thus, as a practical matter, the adoption of this rule will not
make a great deal of differenc7 to the ~rdinary administration.of criminal justice in the sta~e;
b t the assistance of expert witnesses is not a small matter--it can affect the actual operative
f~irness of the system as profoundly as the right to counsel, or the right to effective cross-examination.
Rule 6.l(e). This rule incorporates the st~ndard ?f.Ariz. R. Crim. P. 19(B) to protect the
court against dilatory tactics of the.d7fendant in retaining counsel. It applies to all stages
of the proceedings, not just the preliminary hearing.
- 19 -
Rule 6.l(f). The defendant can decide at any time that he was mistaken to waive counsel; the
court should encourage an unrepresented defendant at all stages to obtain counsel. The defendant's
right to withdraw a waiver of counsel is unlimited; however, he is not allowed to use late appoint­ment
or retention of counsel to disrupt orderly and timely processing of his case. Thus, he cannot
delay a scheduled proceeding, nor repeat one already held, solely becuase of a change of heart
concerning his ability to.represent himself.
6.2. APPOINTMENT OF COUNSEL.
THE PRESIDING JUDGE OF EACH COUNTY SHALL ESTABLISH A PROCEDURE FOR APPOINTMENT
OF COUNSEL BY THE SUPERIOR COURT, OR BY THE NON-RECORD COURTS, FOR EACH INDIGENT
PERSON ENTITLED THERETO BY LAW WHO DOES NOT WAIVE REPRESENTATION.
Comment: The committee decided that the actual place of appointment should be left within
the discretion of the local superior court. The needs of large and small counties, and the extent
to which justices of the peace and city magistrates can be trusted to match difficult cases with
skilled counsel, vary throughout the state--the appointment rule should be flexible enough to
accommodate all situations. The committee concluded, however, that J.P.s and city magistrates
can lawfully be delegated the appointment power even in felony cases by court rule. See comment
to Rule 6.7(c). Thus, the presiding judge of the superior court of each county, based upon
experience,can decide whether to delegate the appointment power to the non-record courts or to
retain it in the superior court.
The language of Rule 6.2 is directive, not discretionary. The committee intends thereby to
express its disapproval of court practices which discourage or delay appointment of counsel when
it is requested,~' offers by the court of a sentence or plea bargain in order to eliminate the
need for counsel at a preliminary hearing.
The issue of compensation is covered in Rule 6.7.
6.3. DUTIES OF COUNSEL1 WITHDRAWAL.
a. NOTICE OF APPEARANCE. AT HIS FIRST APPEARANCE IN ANY COURT ON BEHALF OF'
A DEFENDANT, AN ATTORNEY, WHETHER PRIVATELY RETAINED OR APPOINTED BY THE
COURT, SHALL FILE A NOTICE OF APPEARANCE.
b. DUTY OF CONTINUING REPRESENTATION. COUNSEL REPRESENTING A DEFENDANT AT ANY
STAGE SHALL CONTINUE TO REPRESENT HIM IN ALL FURTHER PROCEEDINGS DEALING
WITH THE SAME OFFENSE, INCLUDING APPEAL, UNLESS THE COURT PERMITS HIM TO
WITHDRAW.
c. DUTY UPON WITHDRAWAL. NO ATTORNEY SHALL BE PERMITTED TO WITHDRAW AFTER A
CASE HAS BEEN SET FOR TRIAL EXCEPT UPON MOTION ACCOMPANIED BY THE NAME AND
ADDRESS OF ANOTHER ATTORNEY, TOGETHER WITH A-SIGNED STATEMENT BY THE
SUBSTITUTING ATTORNEY THAT HE IS ADVISED OF THE TRIAL DATE AND WILL BE
PREPARED FOR TRIAL.
d. LIMITATION ON GROUNDS FOR WITHDRAWAL. AFTER AN ARRAIGNMENT, NO ATTORNEY
MAY WITHDRAW FROM A CRIMINAL CASE SOLELY FOR NONPAYMENT OF FEES. APPOINTED
COUNSEL MAY WITHDRAW AFTER THE ARRAIGNMENT ON THE GROUNDS OF HIS CLIENT'S
INELIGIBILITY ONLY UPON A SHOWING THAT WITHDRAWAL WILL NOT DISRUPT THE
ORDERLY PROCESSING OF THE CASE.
Comment: Rule 6.3(a). This provision is included to inform the court and the state who is
representing the defendant for purposes of service, discovery and plea negotiations and ~o fix clea:ly
in the record the responsibility for continuing legal representation on the attorney first appearing
for the defendant. If the attorney has made an appearance in a non-record court in a particular
felony case on behalf of the defendant, he need not file a new notice of appearance when the
defendant is bound over to superior court. ~Form IX.
Rule 6.3(b). This rule imposes a duty on counsel--private or appoi~t7d--to see a case through
to its conclusion,including appeal. See ABA, Standards Relating to Providing Defens~ s~r;ic~s t
SS.2 (Approved Draft, 1968). Piecemeal representation--one attorney appearing fort~ teie~ an
at his initial appearance, another at the preliminary hearing only, and yet another a r a -­creates
confusion for the court and prosecutor and inefficiently uses scarce legalbr~~~u~~es. f
This rule requires an attorney to finish what he starts, including any appeal. Susi uI~on °
counsel after trial would severely hamper the effort to speed up the appellate process. was
the conclusion of the committee and the ABA Standards, supra, at 48, that:
The advantage of familiarity with the case will gen7rall~ ou~~eigh
any possible advantages to be gained in the fresh viewpoint
successor counsel.
- 20 -
. Rule 6.3(c). Section (c) incorporates Ariz. Uniform Rules of Practice XII (c) into the
criminal rules in order to emphasize its importance in maintaining the trial date. It adds a
requirement that the address of substitute counsel be included in the withdrawal application. See
Ariz. Uniform Rules of Practice XII (c). The conunittee deleted a provision excusing withdrawinq-­counsel
.from securing a replacement when the client states he has been advised of hhe trial date
and has made suitable arrangements to be prepared for trial. See Ariz. Uniform Rules of Practice
XII(c) (3). It concluded that counsel should have an absolute duty to find substitute counsel ·
before withdrawing from a criminal case. '
Rule 6.3(d). The conunittee chose the arraignment as the appropriate cut-off date for with­drawal
due to non-payment of fees because the discovery and omnibus hearing procedures require
that counsel be fixed by that date. It voted to relax this time limit somewhat for appointed
counsel to avoid the hardship of appointment when investigation shows that a defendant is not
indigent.
6.4. DETERMINATION OF INDIGENCY.
a. STANDARD. THE TERM "INDIGENT" AS USED IN THESE RULES MEANS A PERSON WHO
IS UNABLE TO OBTAIN SERVICES OF COUNSEL WITHOUT INCURRING SUBSTANTIAL
HARDSHIP TO HIMSELF OR TO HIS FAMILY.
b. QUESTIONNAIRE. A PERSON DESIRING TO PROCEED AS AN INDIGENT SHALL COMPLETE
UNDER OATH A QUESTIONNAIRE CONCERNING HIS FINANCIAL RESOURCES, ON A FORM
APPROVED BY THE SUPREME COURT.
c. RECONSIDERATION. IF A DETERMINATION OF INDIGENCY OR NON-INDIGENCY HAS BEEN
MADE BY A PERSON OTHER THAN A SUPERIOR COURT JUDGE, IN A CASE TRIABLE IN
SUPERIOR COURT, OR, IF SUCH DETERMINATION WAS MADE BY A SUPERIOR COURT JUDGE
BUT THERE HAS BEEN A MATERIAL CHANGE IN ~IRCUMSTANCES, EITHER THE PERSON
REQUESTING APPOINTMENT OF COUNSEL, THE ATTORNEY APPOINTED, OR THE PROSECUTOR
MAY MOVE FOR RECONSIDERATION OF THE DETERM!NATION BY THE SUPERIOR COURT.
comment: The purpose of Rule 6.4 is to provide standards and procedures for determining
indigency which can be applied uniformly in the Arizona courts. It proceeds on the basic premise
that the efficient and fair administration of justice is served by early appointment of defense
counsel in all criminal cases, limited only by the need to conserve public resources in cases
where the defendant's means clearly enable him to defend himself.
Rule 6.4(a). This standard is drawn from present Arizona law, and the ABA Standards Relating
to Providing Defense Services §6.l (Approved Draft, 1968).
The term "services of counsel" has been used instead of "adequate representation" in order
to avoid unnecessary argument over the quality of services provided. The phrase "without incurring
substantial hardship to himself or to his family" is included:
••• [T]o emphasize that eligibility is not to be determined on the
supposition that one is entitled to be provided counsel only after he
has exhausted every financial resource that might be required for other
vital personal or family necessities, such as food, shelter, or medicine.
ABA, Standards, supra, at 54 (1967).
In making a determination whe~her or not a defendant is indig7nt, th7 court should consider
such factors as income, source of income, property owned, outstanding obligations, the number and
ages of any dependents, and other sources of family income; but it should not consider the fact
that a person has been released on bail nor the ability of friends or relatives, not legally
responsible for him, to obtain services of counsel. See Model Defense of Needy Persons Act §4(b);
state v. Vallejos, 87 Ariz. 119, 348 P.2d 554 (1960); ABA, Standards, supra, at §6.1.
The current standard for indigency for the appointment of counsel in criminal cases is "no
means to employ counsel." ·Ariz. R. Crim. P. 16 (B) (Cum. Supp. 1971) and Ariz. R. Crim. P. 163
(1956). The relevant statutory provision, Ariz. Rev. Stat. Ann. §13-1673 (Cum. Supp. 1971),
includes no standard at all. The only appellate decision discussing the Rule 163 standard is
state v. Allen 105 Ariz. 267, 463 P.2d 65 (1969), which created a presumption of indigency in
marginal cases: The court also stated that the.fact that "the defendant had made a $500 bond or
his failure to really bestir himself to secure counsel cannot be construed as a waiver of a
constitutional right." Id. ,at 269, 463 P.2d.at 66-67. The more stringent standard "without
means and wholly unable to pay" ~n Ariz: R7v. Stat. Ann. §13-1714 (1956) governing provision of
the record on appeal and transcript to indigents by a county was discussed in State v. Vallejos,
87
Ariz. 119, 122, 348 P.2d 554, ~58 (1960). Reversing Riley v. State, 49 Ariz. 123, 65 P.2d 32
(1937), the court held:
[T]he rule set out in Riley v. State, supra--insofar as it denies the
benefits of A.R.S. §13-1714 to those whose friends and relatives, though
not legally responsible, are able to pay for the appeal--is contrary to
the spirit of the new pronouncements by our highest court.
- 21 -
The pronouncements referred to are Griffin v. Illinois, 351 U.S. 12 (1956) and Burns v. Ohio,
360 U.S. 252 (1959) which indicated that "the availability of the appellate procedure to the
individual defendant may not be denied on the basis of discriminatory economic distinctions."
A subsequent decision, based on Vallejos, held that despite the fact that the trial court did
not entirely believe the defendant and despite testimony that the defendant "had handled considerable
money and had owned property" but had ~pent and disposed of it all before trial:
Where an affidavit is filed, and hearing held, unless assets or means
with which to purchase a record and the transcript other than by
borrowing from friends are shown, then the defendant has made out a
prima facie case, and it is the duty of the court, in its discretion,
to order payment thereof by the county. State v. Owen, 97 Ariz. 250,
255, 399 P.2d 660, 666 (1965).
In~, the court disregarded the fact that the defendant's wife had property (a piano) which
might serve as security for a loan. Id., at 252, 399 P.2d at 662-663.
While no case directly discusses the question of the threshold of hardship which may be
imposed, the above cases, and the fact that Ariz. R. Crim. P. 163 imposes a lesser standard for
appointment of counsel than Ariz. Rev. Stat. Ann. §13-1714 (1956) imposes for provision of the
transcript and record on appeal, suggest that Rule 6.4(a), while clarifying present law, does not
work a substantial change from the present Arizona standards of indigency.
Rule 6.4(b). This provision is drawn from ABA Standards Relating to Providing Defense Services
S6.3 (Approved Draft, 1968) and Model Defense of Ne~dy Persons Act §4(b). The questionnai:e is
to provide the court with a factual basis on which to determine indigency, and the amount if any,
which the defendant can contribute to his defense under Rule 6.7(d). A standard form will also
help in obtaining statewide uniformity of practice--specifying what is and is not relevan; •. At
present, only the defendant's sworn statement that he is "without means to employ counsel is
required, see Ariz. R. Crim. P. 163, though the judge has inherent power to conduct an inquiry
if he feelS"Tt necessary. See Form V.
Rule 6.4(c). Reconsideration is allowed as a hedge against expanding the appointive p~wer
in Rule 6.2, allowing either party, or the attorney appointed, to obtain superior court review of
an indigency ruling in a felony case. The use of the term "move" incorporates the procedural
requirements of Rules 38.l and 38.5.
Although the rule does not apply to superior court review of indigency rulin~s in.cases .
triable in non-record courts, defendants may seek such review by special action filed in superior
court under Rule 18.3(a).
6.5. MANNER OF APPOINTMENT.
ORDER OF APPOINTMENT. WHENEVER COUNSEL IS APPOINTED, THE COURT SHALL DIRECT
A MINUTE ENTRY TO THAT EFFECT, A COPY OF WHICH SHALL BE GIVEN OR SENT TO THE
DEFENDANT, THE ATTORNEY APPOINTED,AND THE PROSECUTOR.
APPOINTMENT OF PUBLIC DEFENDER. IN COUNTIES WHICH HAVE A PUBLIC DEFENDER, THE
PUBLIC DEFENDER SHALL REPRESENT ALL PERSONS ENTITLED TO APPOINTED COUNSEL
WHENEVER HE IS AUTHORIZED BY LAW AND ABLE IN FACT TO DO SO.
OTHER APPOINTMENTS. IF THE PUBLIC DEFENDER IS NOT APPOINTED, A PRIVAALTEL BE
ATTORNEY SHALL BE ASSIGNED TO THE CASE. ALL CRIMINAL APPOINTMENTS SH
MADE IN A MANNER FAIR AND EQUITABLE TO THE MEMBERS OF THE BAR, TAKING INTO
ACCOUNT THE SKILL LIKELY TO BE REQUIRED IN HANDLING A PARTICULAR CASE.
REQUESTS FOR REPRESENTATION BEFORE GRAND JURY. A REQUEST FOR APPOINTMENT OF
COUNSEL UNDER RULE 12.6 SHALL BE MADE AND PROCESSED AS IF PROCEEDINGS HAD
ALREADY COMMENCED IN SUPERIOR COURT.
Comment: Rule 6.S(a). Section (a) is included to assure that adequ~te records of appointment
and service of counsel are maintained by all courts and that the persons involve~ ar7 properly
notified. The papers transferred to the superior court after a prelimina:y hearing in a no~f he
record court should contain the name of any attorney appointed and a notice of appearance
made an appearance on the defendant's behalf. ~Rule 6.3(a).
Rule 6.S(b). This section merely adopts current law; it does not attempt to specify or limit
the instances in which the public defender is not "able in fact" to provide representation.
1 6 ()
· d · an equitable manner but not so
Rue .5 c •Appointments of private counsel are to be ma e in ' . t
as to overlook the needs in individual cases for highly skilled counsel. The local superior cour
may establish its own selection system. See Rule 6.2.
Rule 6.5(d). This section implements the rights to counsel contained in Rules
12•5
and
12•6•
a.
b.
c.
d.
- 22 -
6.6. APPOINTMENT OF COUNSEL DURING APPEAL.
THE TRIAL OR APPELLATE COURT MAY APPOINT NEW COUNSEL FOR A DEFENDANT LEGALLY
ENTITLED TO SUCH REPRESENTATION ON APPEAL, WHEN PRIOR COUNSEL IS PRECLUDED BY
LAW OR LEGAL ETHICS FROM REPRESENTING THE DEFENDANT AND A MOTION TO WITHDRAW
UNDER RULE 6.3 HAS BEEN GRANTED, OR WHEN THE PUBLIC DEFENDER IS UNABLE TO
PROSECUTE A TIMELY APPEAL .•
Comment: Rule 6.6 authorizes either the trial or appellate court to appoint counsel for
appeal, implementing the appeal rules in this reg~rd. See Rule 34.5. It applies in two separate
situations--when trial counsel is unable to continue on appeal, see Rule 6.3, and when the public
defender's appellate section because of a lack of resources is unable to prosecute ~n appeal in
a timely fashion. See Time Extension Policy Guidelines of division one of the court of appeals
(November 22, 1971).
6.7 •. COMPENSATION OF APPOINTED COUNSEL.
a. TIMES FOR FILING CLAIMS. A PRIVATE ATTORNEY APPOINTED TO REPRESENT AN
INDIGENT SHALL FILE CLAIMS FOR'COMPENSATION FOR SERVICES RENDERED AT THE
COMPLETION OF ALL TRIAL OR SENTENCING PROCEEDINGS AND AT THE COMPLETION
OF ALL APPELLATE PROCEEDINGS.
b. AMOUNT OF COMPENSATION. AFTER REVIEW OF THE CLAIM, THE COURT SHALL AWARD
THE ATTORNEY A SUM REPRESENTING REASONABLE COMPENSATION FOR THE SERVICES
PERFORMED. IN SETTING THE AMOUNT OF COMPENSATION, THE COURT SHALL TAKE
INTO CONSIDERATION ANY AMOUNT ACTUALLY PAID BY THE DEFENDANT UNDER SECTION
(d). HOWEVER, THE AGGREGATE AMOUNT PAID BY THE DEFENDANT AND THE COUNTY
SHALL NOT EXCEED THE FULL AMOUNT PAID BY THE COUNTY ALONE TO THE APPOINTED
ATTORNEYS IN COMPARABLE CASES.
c. ENTITLEMENT FOR LOWER COURT REPRESENTATION. AN ATTORNEY SHALL BE ENTITLED
TO COMPENSATION FOR SERVICES RENDERED WHETHER OR NOT A CRIMINAL CASE REACHES.
·suPERIOR COURT.
d. CONTRIBUTION BY THE DEFENDANT. IF IN DETERMINING THAT A PERSON IS INDIGENT
UNDER RULE 6.4(a), THE COURT FINDS THAT SUCH PERSON HAS FINANCIAL RESOURCES
WHICH ENABLE HIM TO OFFSET IN PART THE COSTS OF THE LEGAL SERVICES TO BE
PROVIDED, THE COURT SHALL ORDER HIM TO PAY TO THE APPOINTED ATTORNEY, THE
COUNTY, OR THE CLERK OF THE COURT, SUCH AMOUNT AS IT FINDS HE IS ABLE TO PAY
WITHOUT INCURRING SUBSTANTIAL HARDSHIP TO HIMSELF OR TO HIS FAMILY. FAILURE
TO OBEY AN ORDER UNDER THIS SECTION SHALL NOT BE GROUNDS FOR CONTEMPT OR
GROUNDS FOR WITHDRAWAL BY THE APPOINTED ATTORNEY, BUT AN ORDER UNDER THIS
SECTION MAY BE MADE A CONDITION OF PROBATION AND MAY BE ENFORCED BY THE
PAYEE IN THE MANNER OF A CIVIL JUDGMENT. EXCEPT AS AUTHORIZED HEREIN, NO
PERSON, ORGANIZATION OR GOVERNMENTAL AGENCY MAY REQUEST OR ACCEPT ANY PAYMENT
OR PROMISE OF PAYMENT FOR ASSISTING IN THE REPRESENTATION OF A DEFENDANT BY
COURT APPOINTMENT.
Comment: Rule 6.7(a) •. An attorney conducting both trial and appeal need not wait until the
cpmpletion of the appellate process before receiving payment for his services in connection with
the trial. His voucher for services at trial and sentencing should be filed in the trial court,
that for appeal in the appellate court.
Rule 6.7(b). section (b) uses the generally accepted standard for compensation, incorporated
in Ariz Rev. stat. Ann. §13-1673 (Cum. Supp. 1971). The second sentence is intended to insure
that ap~ointed attorneys are fully compensated but to dispel the impression that they are being
paid twice for their services.
Rule 6.?(c).
In Johnson v. Board of Sup7ri:isors, 4 ~riz. App. ~3, 417 P.2d 546 (1966), an
attorney who had performed services at a prelimi~ary hearing by.appointment of the J.P. sued the
b rd of supervisors of Pima County to recover his fee under Ariz. Rev. Stat. Ann. §13-1673 (Cum.
S
oa
1971)
The court ruled that the legislature intended the statute to apply only to situations
iunp pw h• ich app• ointed counsel is consti· tuti· ona1 1 Y requi· r7d , and si· nce.counse1 was not requi· r7d at
reliminary hearings at that time, ~hat the statute did not authorize payment. However, in Johnson
Pd Douglas v Superior court, 2 Ariz. App. 407, 409 P.2d 566, vacated on other grounds, 101 Ariz.
;~3,
419
P.2d.730 (1966), the court of appeals, in dictum, held that an attorney is entitled to.
compensation for services performed at the J.P •. level even.though t~e case does not reach superior
t if the appointment was made by the superior court. The corrunittee concluded that after
~~~~m~n v. Alabama, 399 u.s:-1 (1969), and Argersin~er v. Hamlin,~- u7s. ~' 4?, U.S.L.W. 4679
{J 12 1972) the rationale of the Johnson case cuts in exactly the opposite direction, and that
thun~istinction in Johnson and Douglas--as to the court making the appointment--is one without
e basis in the statute itself, which refers only to "the court"--by inference the one in which ~g~ "criminal proceeding" took place. Thu~, it found no.statutory or case law impediments to
compensation of appointed counsel for services rendered in non-record courts.
- 23 -
Rlfle 6.7(d). This provision is included at the suggestion of the ABA Standards Relating to
Providing Defense Services S6.2 (Approved Draft, 1968). It has a dual purpose: (i) to lighten
the burden of providing legal services on county taxpayers by requiring t~ose unable to pay the
full amount of legal services to pay what they can, and (ii) to aid those persons who find them­selves
not affluent enough to be able to afford private counsel and too rich to qualify for
appointed counsel or the public defender under present standards. see Silverstein, Defense of the
~ 112, 118 (1965). -
Partial compensation of trial costs and attorney's fees is not specifically authorized by
statute,~ Ariz. Rev. Stat. Ann. §13-1673 (Cum. Supp. 1971). The statute provides that reason­able
compensation for services rendered by appointed counsel shall be paid by the county, and that
no compensation on a per case basis shall be paid to the public defender. However, courts in
some counties have long imposed an analogous requirement as a condition of probation--that a
probationer pay a specified amount to his trial counsel or to the county, as reimbursement of the
costs of trial. The conunittee concluded that since the court has discretion over the amount of
compensation paid to appointed attorneys, it may set the level of compensation so as to account
for the defendant's contribution, and that it is appropriate that attorneys be appointed in those
cases in which the defendant has some means to pay. In deciding whether to order contribution by
the defendant, the court may consider the ability of the defendant to obtain gain~ul employment
if he is currently unemployed, but it should not premise its decision on speculation concerning
nis possible future resources.
The judge is given discretion in determining to whom the partial payment is to be made. In
the case of a person being defended by the public defender, such payment should be made to the
county; when a private attorney has been appointed, direct payment is al~owed to promo~e an
attorney-client relationship, or p~yment may be made to the clerk when direct payment is inappro­priate.
Making payment a condition of probation and enforcing a payment orde7 under.Ariz. R •. civ.
P. 69 seem the only feasible and constitutional ways of implementing this section. Making
payment a condition of probation permits the probation officer to aid in securing compliance.
See Rule 30. It is intended, however, that revocation for nonpayment be used.only as a last
resort since imprisoning a person already adjudged an indigent for failing to pay for 7fforts
intended to prevent or to shorten his incarceration seems Mikado-esque at best. The final sentence
is to prevent the application of improper pressures on the defendant or his family and friends and
is taken directly from the 1964 Federal Criminal Justice Act, 18 u.s.c. S3006(A) (f).
RULE 7.
7.1.
RELEASE.
DEFINITIONS AND APPLICABILITY OF RULE.
a. OWN RECOGNIZANCE. "OWN RECOGNIZANCE" MEANS RELEASE WITHOUT ANY CONDITION
OF AN UNDERTAKING RELATING TO, OR DEPOSIT OF, SECURITY.
b. APPEARANCE BOND. AN "APPEARANCE BOND" ·IS AN UNDERTAKING, ON A FORM
APPROVED BY THE SUPREME COURT, TO PAY TO THE CLERK OF THE COURT A
SPECIFIED SUM OF MONEY UPON FAILURE OF A PERSON RELEASED TO COMPLY
WITH ITS CONDITIONS.
c. 10% APPEARANCE BOND. A "10% APPEARANCE BOND" IS AN APPEARANCE BOND
SECURED BY DEPOSIT WITH THE CLERK, IN CASH, OF A SUM NOT TO EXCEED
10% OF THE AMOUNT THEREOF.
d. SECURED APPEARANCE BOND. A "SECURED APPEARANCE BOND" IS AN APPEARANCE
BOND SECURED BY DEPOSIT WITH THE CLERK OF SECURITY EQUAL TO THE FULL
AMOUNT THEREOF.
e , .SECURITY. "SECURITY" IS CASH, A SURETY'S UNDERTAKING, OR ANY PROPERTY
OF VALUE, DEPOSITED WITH THE CLERK TO SECURE AN APPEARANCE BOND. THE
VALUE OF SUCH PROPERTY SHALL BE DETERMINED BY THE CLERK, OR AT HIS OR·
A PARTY'S REQUEST, BY THE COURT.
f. SURETY. A "SURETY" IS ONE, OTHER THAN THE PERSON RELEASED, WHO EXECUTES
AN APPEARANCE BOND AND BINDS HIMSELF TO PAY ITS AMOUNT IF THE PERSON
RELEASED FAILS TO COMPLY WITH ITS CONDITIONS. A SURETY SHALL FILE WITH
AN APPEARANCE BOND AN AFFIDAVIT THAT HE IS NOT AN ATTORNEY OR PERSON
AUTHORIZED TO TAKE BAIL, AND THAT HE OWNS PROPERTY IN THIS STATE (OR IS
A RESIDENT OF THIS STATE OWNING PROPERTY) WORTH THE AMOUNT OF THE
APPEARANCE BOND, EXCLUSIVE OF PROPERTY EXEMPT FROM EXECUTION AND ABOVE
AND OVER ALL LIABILITIES, INCLUDING THE AMOUNT OF ALL OUTSTANDING
APPEARANCE BONDS ENTERED INTO BY HIM, SPECIFYING SUCH PROPERTY, THE
EXEMPTIONS AND LIABILITIES THEREON, AND THE NUMBER AND AMOUNT OF SUCH
'APPEARANCE BONDS.
- 24 -
g. PROFESSIONAL BONDSMAN. ANY PERSON WHO IS SURETY SIMULTANEOUSLY ON MORE
THAN FOUR APPEARANCE BONDS IS A "PROFESSIONAL BONDSMAN." NO PERSON MAY
BE A PROFESSIONAL BONDSMAN UNLESS CERTIFIED ANNUALLY BY TttE CLERK OF THE
SUPERIOR COURT THAT HE
(1) IS A RESIDENT OF THIS STATE;
(2) HAS SUFFICIENT FINANCIAL NET WORTH TO SATISFY REASONABLE OBLIGATIONS
AS A SURETY;
(3) HAS NOT ~EEN CONVICTED OF A FELONY;
(4) HAS NO JUDGMENTS ARISING OUT OF SURETY UNDERTAKINGS OUTSTANDING
AGAINST HIM;
(5) HAS NOT, WITHIN A PERIOD OF TWO YEARS, VIOLATED ANY PROVISIONS OF
THESE RULES OR ANY COURT ORDER.
CERTIFICATION MAY BE REVOKED OR WITHHELD BY THE CLERK, OR BY THE COURT, FOR
VIOLATION OF ANY PROVISION OF THIS RULE.
h. APPLICABILITY. THIS RULE SHALL NOT APPLY TO MINOR TRAFFIC OFFENSES.
comment: Rule 7.1 con~ains the defi~itions of the t7r~s u~ed in the rule and the requirements
for "sureties" and "professional bondsmen currently specified in the rules of criminal procedure.
Rule 7.l(a). Nowhere is the term "own recognizance" defined in current rules or statutes.
see Form VI for an order of release on own recognizance. - Rule 7.l(b). ·The rule substitutes for "bail bond" and "bail" the term "appearance bond" which
emphasizes the role of unsecured bonds. See Ariz. Rev. Stat. Ann. §13-1577(E) (Cum. Supp. 1971)
(noting propriety of conditions other than money bail). See Form VII.
Rule 7.l(c). This section incorporates the 10% deposit provision used in Illinois and other
~urisdictions which have pioneered in bail reform. See 38 Ill. Rev. Stat. §110-7 (Supp. 1971).
Its effect is to allow the defendant to act as his own bailbondsman, promising to pay the full
amount of the bond if he does not appear, but depositing only 10% of it with the court. Ten per­cent
is all that the defendant himself pays when he posts a bail bond at present; it is the standard
amount of the "bond premium" charged by the bondsman. However, under this provision, the defendant
will be able to recover most of his deposit when he satisfies his obligation to appear. See
Rule 7.6(e) which authorizes the clerk of the court to retain a reasonable fee to cover the cost of
administration and handling.
use of the 10% appearance bond eliminates some of the unfairness of the traditional bail bond.
The bondsman returns none of the "bond premium;" it is, in effect, a forfeiture imposed on a
citizen because he has been charged with crime. The bond also creates an additional incentive for the
defendant to appear, for he gets most of his deposit back. One commentator claims tha~ there has
been a lower rate of forfeiture of 10% than of full surety bonds under the Illinois plan. BoWr:lan,
The Illinois Ten Percent Bond Deposit Provision, 1965 u. Ill. L.F. 35.
It is clear to most observers that bail bondsmen are a blight on a modern system of cri~i~al
justice, and their eradication has been proposed by the ABA, Standards Relating to P

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AR I ·z 0 NA
P R 0 P 0 S E D R U L E S
0 F
C R I M I N A L P R 0 C E D U R E
THESE PROPOSED RULES ARE PUBLISHED BY THE ARIZONA
STATE BAR COMMITTEE ON CRIMINAL LAW FOR PRESENTATION
TO THE ARIZONA SUPREME COURT WITH THE RECOMMENDATION
THAT THEY BE PROMULGATED TO GOVERN CRIMINAL PRO­CEEDINGS
IN THIS STATE. THEY ARE BEING MADE AVAILABLE
TO THE PUBLIC IN ORDER TO AFFORD INTERESTED LAWYERS,
JUDGES, AND CITIZENS AN OPPORTUNITY TO REVIEW AND
COMMENT UPON THEM. COMMENTS SHOULD BE MAILED NO LATER
THAN SEPTEMBER 15, 1972 TO:
Marvin Linner, Esquire
Administrative Director of the Courts
Supreme Court of Arizona
State Capitol Building
Phoenix, Arizona 85007
ALL COMMENTS RECEIVED WILL BE REVIEWED WITH INTEREST
BY BOTH THE COMMITTEE AND THE COURT. ADDITIONAL
COPIES MAY BE OBTAINED FROM ANY CLERK OF THE SUPERIOR
COURT OR FROM THE ADMINISTRATIVE DIRECTOR OF THE
COURTS.
S c. \. C~ " c (D i. (1 7d..
A R I Z 0 N A
P R 0 P 0 S E D R U L E S
0 F
C R I M I N A L P R 0 C E D U R E
Presented To The
ARIZONA SUPREME COURT
By The
ARIZONA STATE BAR COMMITTEE ON CRIMINAL LAW,
The Supreme Court's Advisory Committee on Criminal Rules
July 15, 1972
The preparation of these Rules was aided by grants from the
Arizona Supreme Court, the Arizona State Justice Planning
Agency, and the National Institute of Law Enforcement and
Criminal Justice, Law Enforcement Assistance Administration
of the United States Department of Justice (pursuant to
Part c, Section 301B or Title I of the Omnibus Crime
Control and Safe Streets Act of 1968 (PL~90-351)).
ARIZONA STATE BAR COMMITTEE ON CRIMINAL LAW
Chairman
Charles E. Ares - Dean, University of Arizona College of Law, Tucson
Subcommittee Chairmen
Anthony H. Mason - Attorney, Phoenix
William J. Schafer, III - Assistant Attorney General, Phoenix
Phillip Weeks - Attorney, Phoenix
Members
* Robert R. Bean - Pinal County Attorney, Florence
Thelton D. Beck - Yavapai County Attorney; Attorney, Prescott
Edward Bolding - Pima County Public Defender, Tucson
Lloyd D. Brumage - Attorney, Casa Grande
Lawrence c. Cantor - Attorney, Phoenix
Gerald M. Caplan - Professor, Arizona State University, Tempe
B. Michael Dann - Attorney, Phoenix
William P. Dixon - Assistant Attorney General, Phoenix
John J. Flynn - Attorney, Phoenix
Honorable Charles L. Hardy - Judge, Superior Court of Arizona, Phoenix
Honorable Lawrence Howard - Judge, Court of Appeals, Tucson
Charles F. Hyder - Chief Deputy County Attorney, Phoenix
Anne Kappes - Deputy Public Defender, Phoenix
Howard A. Kashman - Pima County Public Defender, Tucson
John A. Lasota, Jr. - Legal Advisor, Metropolitan Police Depart~ent, Phoenix;
Visiting Professor, Arizona State University, Tempe
Roger McKee - Legal Advisor, Arizona Department of Public Safety;
Deputy County Attorney, Phoenix
George B. Morse - Attorney, Tucson
Stephen D. Neely - Deputy County Attorney, Tucson
Gary K. Nelson - Attorney General,· State of Arizona, Phoenix
Lars Pedersen - Attorney, Tucson
Robert A. Ritchie - Deputy Public Defender, Phoenix
William R. Stevens, Jr. - Deputy County Attorney, Tucson
Thomas A. Thinnes - Attorney, Phoenix
Honorable Howard F. Thompson - Judge, Superior Court of Arizona, Phoenix
Honorable Lee H. Waggoner - Justice of the Peace, Prescott
James D. Whitney - Assistant United States Attorney, Tucson
James M. Wilkes - Assistant United States Attorney; Attorney, Tucson
Paul E. Wolf - Attorney, Tucson
Honorable Laurance T. wren - Judge, Superior Court of Arizona, Flagstaff
Thomas A. Zlaket - Attorney, Tucson
**
*
*
*
*
**
*
*
John M. Greacen - Project Director, Tucson
Frank D. Berry, Jr. - Research Associate, Tucson
Richard Van Duizend - Research Associate, Tucson
Behavior Research Center, Inc., Earl deBerge, President; Organizational Development
Associates, Inc., Donald A. Ehat, President; and Stephen D. N~ely - Consultants
Dale E. Pontius, John R. Bolt, Kim A. Richards, Dons. Alpert - Research Assistants
Janeece T. Stock, *Gertha L. Brown, Melinda s. Karnok - Secretaries
Resigned prior to completion of Rules
** Ex Officio
INTRODUCTION
The Rules of criminal Procedure were last revised in 1955. Since then the
nation has experienced the "criminal law revolution" and the problem of crime
control has become a matter of high domestic priority. The Arizona supreme court
has determined that a thorough review of our criminal justice system is in order.
'rhese proposed Rules of criminal Procedure are the result of two years of labor by
the state Bar committee on Criminal Law, acting as the Supreme court's advisory
board under A.R.S. §12-110. The research and drafting work was done by a superb,
full-time staff employed under a U.S. Department of Justice grant and funds made
available by the supreme court and the Arizona Legislature.
The committee has taken a fresh look at the entire criminal process with the
intent of improving its efficiency while preserving the fundamental rights of
defendants. Aware that delay in the courts is one of the principal criticisms of
the system, the committee has sought to identify the causes of unreasonable delay
and to remedy them. In view of the sweeping changes found to be necessary, we have
completely restructured the present system and have drafted an entirely new set of
rules.
Not surprisingly, some of the innovations proposed in these rules are contro-versial.
The proposals for tightening up preliminary hearings, increasing the
scope of mandatory pre-trial disclosure by both the prosecution and the defendant,
the open recognition and regulation of plea bargaining, the streamlining of the
appellate process and development of a unified post-conviction procedure are all
sure to generate considerable interest. 'rhe Committee has struggled hard with all
these issues, drawing on the best scholarship in the nation and on such rich veins
of ideas as the A.B.A. Project on Minimum standards for criminal Justice and re­cently
adopted procedural codes and rules from a number of other states. The
committee has not always been unanimous. The majority believes, however, that the
final proposals strike the best possible balance of the interests involved and as a
result constitute a fair and efficient system.
The proposed Arizona Rules, supported by extensive commentary prepared by the
staff, have now been submitted to the Supreme court and are being circulated to the
bench and bar of Arizona for comment. The returns will be collated and considered
by the supreme court prior to its promulgation of new Rules of Criminal Procedure.
Having poured literally thousands of hours into these draft rules, the committee and
its staff urge all those interested in the criminal process to subject them to the
most thoughtful scrutiny and to give the Supreme court the benefit of their most
careful appraisal.
CHARLES E. ARES, Chairman
TABLE 0 F C 0 N T E N T S
RULE NO. PAGE NO.
I. GENERAL PROVISIONS
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
36.
37.
38.
39.
1. Scope, Purpose and Construction, Computation of Time, Definitions,
Effective Date. 1
II. PRELIMINARY PROCEEDINGS
2.
3.
4.
5.
Commencement of Criminal Proceedings.
Arrest Warrant or Summons Upon Commencement of Criminal Proceedings.
Initial Appearance.
Preliminary Hearing.
2
4
6
9
III. RIGHTS OF PARTIES
Attorneys, Appointment of Counsel.
Release.
Speedy Trial.
Presence of Defendant, Witnesses and Spectators.
Change of Judge or Place of Trial.
Incompetency and Mental Examinations.
16
24
32
38
40
44
IV. PRETRIAL PROCEDURES
The Grand Jury.
Indictment and Information.
suspension of Prosecution.
Arraignment.
Discovery.
Pretrial Motion Practice; Omnibus Hearing; Dismissal.
Interlocutory Review.
Pretrial Conference.
55
59
62
63
67
84
94
96
V. PLEAS OF GUILTY AND NO CONTEST
Pleas of Guilty and No Contest. 97
VI. TRIAL
Trial by Jury; Waiver; Selection and Preparation of Jurors.
Trial.
Judgment of Acquittal.
Instructions. ·
Deliberations.
verdict.
103
108
111
111
112
114
VII. POST-VERDICT PROCEEDINGS
Post-Trial Motions.
Procedure After Verdict or Finding of Not Guilty By Reason of Insanity.
Judgment, Pre-Sentence Report, Pre-Sentencing Hearing, Sentence.
Probation and Probation Revocation.
Retention and Destruction of Records and Evidence.
Restoration of Civil Rights.
VIII. APPEAL AND OTHER POST-CONVICTION RELIEF
116
120
122
132
139
141
Appeals from Non-Record Courts.
Appeals from superior Court.
Other Post-Conviction Relief.
143
145
163
IX. POWERS OF COURT
Criminal Contempt.
Subpoenas.
Form, content and Service of Motions and Requests.
Local Rules.
172
174
175
176
Minority Report
Appendix - Forms
I. GENERAL PROVISIONS
1.1.
SCOPE, PURPOSE AND CONSTRUCTION, COMPUTATION OF TIME, DEFINITIONS, EFFECTIVE DATE. ~- THESE RULES SHALL GOVERN THE PROCEDURE IN ALL CRIMINAL PROCEEDINGS IN ALL
COURTS WITHIN THE STATE OF.ARIZONA. THE RULES OF PROCEDURE IN TRAFFIC CASES
SHALL CONTINUE TO APPLY IN ALL SITUATIONS TO WHICH THESE RULES DO NOT APPLY.
RULE 1.
comment: These rules are intended to provide uniform standards and procedures for crimin~l
proceedings before all Arizona co~rts: They are to govern non-record as well as record courts
unless specifically stated otherwise in a particular rule. Rule 39 authorizes all courts to
supplement these rules by local rules.
These rules apply in traffic cases except where a particular rule, by its terms, is made
in~pplicable to some or all traffic cases, or restricted in operation to the superior court. The
rules distinguish between "minor traffic offenses" and other traffic offenses in some situations.
The committee intends that Rules III, IV, V, VI and VII of the Rules of Procedure in Traffic
cases will continue to govern the processing of minor traffic cases. Rules 20.1, 20.5 and 20.6
will apply to pleas of guilty or no contest in all traffic cases. Rule VIII of the
Rules of Procedure in Traffic Cases will c~ntinue to govern the procedure for accepting pleas in
minor traffic cases: 1pleas in other traffic cases,~' D.W.I., will be taken with the full
formalities of Rules 20.2, 20.3 and 20.4.
1.2. PURPOSE -AND CONSTRUCTION.
THESE RULES ARE INTENDED TO PROVIDE FOR THE JUST, SPEEDY DETERMINATION OF EVERY
CRIMINAL PROCEEDING. THEY SHALL BE CONSTRUED TO SECURE SIMPLICITY IN PROCEDURE,
FAIRNESS IN ADMINISTRATION, AND THE ELIMINATION OF UNNECESSARY DELAY AND EXPENSE.
comment: See Fed. R. Crim. P. 2. The experience of the federal courts with their Rule 2 has
demonstrated the immense value of a rule of general construction. See, for examples, 1 c. Wright,
Federal Practice & Procedure §§31 and 32 (1969). ~-
Rule 1.2 is designed for use by Arizona courts as a general policy statement by which problems
of construction may be solved. It is not, however, to be used to circumvent the requirements of
other rules.
1.3. COMPUTATION OF TIME.
IN COMPUTING ANY PERIOD OF TIME OF MORE THAN 24 HOURS PRESCRIBED BY THESE
RULES, BY ORDER OF COURT, OR BY ANY APPLICABLE STATUTE, THE DAY OF THE ACT
OR EVENT FROM WHICH THE DESIGNATED PERIOD OF TIME BEGINS TO RUN IS NOT TO BE
INCLUDED. THE LAST DAY OF THE PERIOD SO COMPUTED SHALL BE INCLUDED, UNLESS IT
IS A SATURDAY, SUNDAY OR LEGAL HOLIDAY, IN WHICH CASE THE PERIOD SHALL RUN UNTIL
THE END OF THE NEXT DAY WHICH IS NEITHER A SATURDAY, SUNDAY OR LEGAL HOLIDAY.
WHENEVER A PARTY HAS THE RIGHT OR IS REQUIRED TO TAKE SOME ACTION WITHIN A
PRESCRIBED PERIOD AFTER SERVICE OF A NOTICE OR OTHER PAPER AND SUCH SERVICE IS
MADE BY MAIL, 3 DAYS SHALL BE ADDED TO THE PRESCRIBED PERIOD.
comment: This section incorporates the formula for computing time contained in Ariz. R. Civ.
p 6(a) and (e). Identical time computation standards should greatly simplify the task of clerks,
c~urt administrators, and attorneys who practice in both the civil and criminal areas.
1.4. DEFINITIONS.
WHENEVER THEY APPEAR IN THESE RULES THE TERMS BELOW SHALL CARRY THE FOLLOWING
MEANING:
MINOR TRAFFIC OFFENSE. ANY OFFENSE CONTAINED IN ARIZ. REV. STAT. ANN. tit.
a. 28, EXCEPT THOSE PUNISHABLE BY IMPRISONMENT FOR 30 DAYS OR MORE.
b.
PRESIDING JUDGE. FOR THE SUPERIOR COURT, THE JUDGE IN COUNTIES HAVING ONLY
ONE SUPERIOR COURT JUDGE, AND, IN OTHER COUNTIES, THE JUDGE DESIGNATED BY
THE SUPREME COURT AS PRESIDING JUDGE, OR ANOTHER JUDGE APPOINTED BY HIM
REGULARLY TO HANDLE A PARTICULAR DUTY. FOR OTHER COURTS, THE JUDGE, OR,
IN COURTS HAVING MORE THAN ONE JUDGE, THE JUDGE DESIGNATED AS PRESIDING
JUDGE BY THE APPROPRIATE AUTHORITY. THE PRESIDING JUDGE FOR THE SUPERIOR
COURT IS THE PRESIDING JUDGE OF THE COUNTY.
- 1 -
c. NON-RECORD COURT. ANY JUSTICE OF THE PEACE, CITY MAGISTRATE OR POLICE
COURT.
Comment: Rule l.4(a). Currently, title 28 includes the following offenses punishable by
imprisonment for 30 days or more--driving under the influence of intoxicating liquor or drugs,
reckless driving, racing on highways, weight violations, and the third conviction within one year
of any other offense in chapter 6 of title 28. See Ariz. Rev. Stat. Ann. §§28-692, -692.01, -693,
-708, -1008 and -1009 (Cum. Supp. 1971) and Ariz:-R'ev. stat. Ann. §28-1031 (1956). The definition
is included here to clarify the meaning of the term in Rules 15 (Arraignment), 20 (Pleas of Guilty
and No Contest), and 29 (Sentencing).
Rule l.4(b). The definition of "presiding judge" contained here does not alter the current
understanding of that term. It is included here to clarify the meaning of the term in Rules 4.1
(Procedure on Arrest), 8 (Speedy Trial) and 10 (C~ange of Judge or Place of Trial).
1.5. EFFECTIVE DATE AND APPLICABILITY OF RULES.
THESE RULES SHALL GOVERN ALL CRIMINAL ACTIONS COMMENCED ON OR AFTER TWELVE
O'CLOCK MIDNIGHT,
Comment: The rule deviates from current Ariz. R. Crim. P. 366 in that it makes the new rules
apply only to cases commenced on or after the effective date, not to cases pending on that date.
Rule 366 made the current rules applicable to pending cases, but allowed the court to use the old
rules whenever it concluded they would be more feasible or just.
II. PRELIMINARY PROCEEDINGS
RULE 2. COMMENCEMENT OF CRIMINAL PROCEEDINGS.
2.1. MISDEMEANORS.
a. SUPERIOR COURT. MISDEMEANOR ACTIONS MAY BE COMMENCED IN SUPERIOR COURT
BY INDICTMENT, OR BY INFORMATION FILED DIRECTLY IN SUPERIOR COURT.
b. NON-RECORD COURTS. MISDEMEANOR ACTIONS TRIABLE IN COURTS NOT OF RECORD SHALL
BE COMMENCED BY COMPLAINT·
C~mm~nt:. Rule 2.l(a). Constitutionally, the extent of the superior court's original misd7meanc~
jurisdiction is not clear. Ariz. Const. art. 6 §14(4) restricts the jurisdiction of the superior
court "to those misdemeanors which are not othe~ise provided for by law." Since Ariz. Rev. Stat.
Ann. §22-301(4) (Cum. Supp. 1971) gives justices of the peace jurisdiction over "low m~sdemeanors"
(offenses punishable by not more than 6 months imprisonment or a $300 fine), the superior court
could be held, under the literal wording of the provision to have no jurisdiction over such offenses.
However, Ariz. Rev. Stat. Ann. §12-123 (1956) grants the ~uperior court concurrent jurisdic~ion over
low misdemeanors. Since Ariz. Const. art. 6, §14(4) was derived from language in former Ariz. Const.
art. 6, §6, and the statute has been sustained in the face of that provision, State v. Johnso~, ,80
Ariz. 45, 292 P.2d. 465 (1955), the fairest conclusion is that the superior court does have original
jurisdiction over low misdemeanors.
Rule 2.l(a) describes the means by which misdemeanor prosecutions may be initiated in the
superior court. It simply restates the requirement of Ariz. Const. art. 2, §30 that all prose?u­tions
in superior court proceed by indictment or information. While indictment ~snot the ordinary
method of commencing misdemeanor prosecutions, there is no reason why the grand J~rr should not be
able to charge them. See Ariz. Rev. Stat. Ann. §21-413 (Cum. supp. 1971) (au~horiz~ng the ~rand
jury to return a charge of "commission of a public offense"). The use of a dir7ct.information
(i.e., a complaint filed directly in the superior court without a.preliminary finding of probable
cause by a magistrate) is the more normal method of proceeding.
Rule 2.l(b), This section, which states the means of commencing misde~eanor acti~~~n~n ~~!tice
of the peace and city magistrate courts, authorizes commencement of the actio~ ~ytcompcedur~ or­Ariz.
Rev. Stat. Ann. §22-311 (1956), including the notice-to-appear-and-comp ain pro es and
Ariz. Rev. Stat. Ann. §13-1422 (Cum. Supp. 1971), the use of which the committee approv
encourages.
An indictment in a non-record court is clearly inappropriate.
- 2 -
2.2. FELONIES.
FELONY ACTIONS MAY BE COMMENCED
a. BY INDICTMENT, WHICH MAY OR MAY NOT BE PRECEDED BY A COMPLAINT; OR
b. BY THE FILING OF A COMPLAINT BEFORE A MAGISTRATE IN A NON-RECORD COURT,
UNLESS GOOD CAUSE IS SHOWN FOR FILING THE COMPLAINT IN A COURT OF RECORD.
Comment: This section simply codifies the current law. See Ariz. R. Crim. P. 78, 79. A
felony proceeding in Arizona may be prosecuted only by indictment or information. Ariz. Const.
art. 2, §30.
Rule 2.2(a). The procedures governing the return of an indictment are set forth in Rule 12.
The filing of a complaint is neither a condition precedent to the return of an indictment, nor a
bar to proceeding by indictment thereafter. Cf. Wilson v. Garrett, 104 Ariz. 57, 448 P.2d 857 (1969).
Rule 2.2(b). A prosecution may also be initiated by the filing of a complaint before a
magistrate. The last clause of Rule 2.2(b) permits the filing of the complaint in superior court
only upon a showing of good cause. T~e time of the superior court is too important to waste on
preliminary criminal matters, except in rare.c~ses, such as situations appropriate.for a "Rule l"
hearing (see Rule 2.4). or where a number of Joinable offenses have been committed in different
justice precincts and ~an best be handled in a single proceeding in superior court. This provi­sion
is not intended to permit refiling of a complaint in superior court after it has been
dismissed by the appropriate justice of the peace. See Ariz. Rev. Stat. Ann. §22-301 (Cum. supp.
1971); Wilson v. Garrett, supra.
The proposed rule does not contain the provision of current Ariz. R. Crim. P. 79 for auto­matic
waiver of a preliminary hearing by entry of a plea to the merits after an information has
been filed. Rule 5.1 specifically requires such waiver to be in writing in every case, and, under
Rule 15, the arraignment does not mark the deadline for raising any defense or objection.
2.3. FORM AND CONTENT OF COMPLAINT.
A COMPLAINT IS A WRITTEN STATEMENT OF THE ESSENTIAL FACTS CONSTITUTING A
PUBLIC OFFENSE, MADE UPON OATH BEFORE A MAGISTRATE.
comment: This section greatly simplifies the definition of "complaint" contained in current
Ariz. R. Crim. P. 1. The simplification is in accord with the committee's policy of removing
unduly technical language from the rules wherever possible. For drafting guidance, see Form I,
which follows the long-standing Arizona practice of allowing complaints to be filed on the basis
of the complainant's personal knowledge, or his information and belief. See Turley v. State, 48
Ariz. 61, 59 P.2d 312 (1936); State v. Currier, 86 Ariz. 394, 347 P.2d 29-rT959). The Arizona
Traffic Ticket and Complaint complies with this rule.
2.4. DUTY OF MAGISTRATE UPON FILING OF COMPLAINT OR DIRECT INFORMATION.
THE UAGISTRATE BEFORE WHOM A COMPLAINT OR RULE 2.l(a) INFORMATION IS FILED
SHALL SUBPOENA FOR EXAMINATION SUCH WITNESSES AS HE DEEMS NECESSARY, AND SUCH
ADDITIONAL WITNESSES AS MAY BE REQUESTED BY THE PROSECUTOR. IF HE DETERMINES
FROM THE COMPLAINT, ANY AFFIDAVITS FILED, AND ANY TESTIMONY TAKEN, THAT THERE
IS REASONABLE CAUSE TO BELIEVE AN OFFENSE HAS BEEN COMMITTED AND THE DEFENDANT
COMMITTED IT, HE SHALL PROCEED UNDER RULE 3.1: IF NOT, HE SHALL DISMISS THE
COMPLAINT OR INFORMATION.
comment: This sectio~ se~s forth the.duties o~ the magistrate upon the filing of
a complaint or direct information. ~.Ariz. R. Crim. ;,. l(B), 2, 154 and 155. He is required
to determine whether or not the charge is supporte~ by. reasonable cause," and is empowered to call
such witnesses as he deems necessary to the determination.
The rule preserves the so-called "c;>ne man.g7az;d ~ury" of current Ariz. R. Crim. P. 1, by
which the magistrate is empowered, on his own initiative or upon request of the prosecutor, to
call witnesses and generally to inquire into the existence of criminal activity--because he is
unsatisfied by the material and testimony ~resented to him, or to aid in full investigation of
criminal matters of public imp~rtance: .This procedure has.proved ~alua~le in screening complaints
filed by.private citizens and 7n providi~g the~prosecuto7 in ~ount7es without a grand jury with
a comparable truth-seeking device, especially .or cases in which witnesses refuse or are reluc-tant
to cooperate until subpoenaed and placed under oath.
- 3 -
A "Rule l" hearing has often been initiated by the filing of a "John Doe" complaint by a
prosecutor who knows a crime has been committed but, because of the reluctance of witnesses, has
been unable to identify the culprit. The complaint is then amended or dismissed according to the
evidence adduced at the proceeding. Good practice dictates recording the testimony taken at such
hearings in order to avoid having to call the judge or prosecutor to the stand should a witness's
testimony change thereafter.
The magistrate's duty under this ·rule is to protect members of the public from being "~arassed
by frivolous or malicious charges." Turley v. State, 48 Ariz. 61, 59 P.2d 312 (1936). He is
required generally to assure himself that the charges are based on more than "[c]ommon rumor or
report, suspicion, or even strong reason to suspect," Henry v. United States, 361 u.s. 98 (1959),
and that the complainant has personal knowledge of "reasonably trustworthy information," sufficient
"to warrant a man of reasonable caution in the belief" that an offense has been committed and that
the accused committed it, Ker v. California, 374 u.s. 23 (1963), before issuing a warrant or summons.
If the com~laint purports to be based on the actual knowledge.of the complainant, the magis­trate
may take it at face value and issue process without further proceedings, unless he has reason
to doubt the trustworthiness or reliability of the complainant or his knowledge, or reason to be­lie~
e that the complaint.is not, in fact, based on his knowledge, but rather upon information and
bel~ef. Erdman v. Superior Court, 102 Ariz. 524, 433 P.2d 972 (1967). If the complaint or infor­mation
purports to rest on information and belief (or the magistrate has reason to believe it
is so based), th7 magistrate must "satisfy himself, from an examination of the complaining witness
and such other witnesses as he may deem necessary" that reasonable cause exists. Erdman v.
Superior Court, supra at 529, 433 P.2d at 977; St~te v. Currier, 86 Ariz. 394, 347 P.2d 29"'(1959) •
Rule 2.4 goes beyond current Ariz. R. Crim. P. 154 by requiring the superior court, sitting
as a magis~rate, to make a "reasonable cause" determination upon the filing of a direct informa­tion.
A direct information serves the same purpose as a misdemeanor complaint filed in th~
justice court, and should be treated in the same manner. The rule is not intended to require any
change in current procedures under Rules of Procedure in Traffic Cases.
2.5. ALTERNATIVE PROCEDURE FOR COMMENCING MISDEMEANOR ACTIONS TRIABLE IN SUPERIOR COURT.
IN THE DISCRETION OF THE PROSECUTOR, A MISDEMEANOR ACTION TRIABLE IN SUPERIOR
COURT MAY BE COMMENCED BY FILING A COMPLAINT IN THE JUSTICE COURT AS UNDER
RULE 2.2(b) AND PROSECUTED THEREAFTER ACCORDING TO THE PROCEDURES APPLICABLE
IN FELONY CASES.
Comment: This rule is included at the request of prosecutors in smaller counties~ who have very
few high misdemeanor cases, and would prefer to follow a single procedure for all criminal cases to
be tried in superior court.
The committee concluded that no prejudice would result to either party, that the additional pre­liminary
hearings required would entail minimal effort in smaller counties, and that there are no
jurisdictional objections to such a procedure.
RULE 3. ARREST WARRANT OR SUMMONS UPON COMMENCEMENT OF CRIMINAL PROCEEDINGS.
3.1. ISSUANCE OF WARRANT OR SUMMONS.
a. ISSUANCE. UPON PRESENTMENT OF AN INDICTMENT, OR ON A FINDIN~ OF
REASONABLE CAUSE MADE PURSUANT ~O RULE 2.4, ~HE MAGISTRATE SHALL
IMME~IATELY ISSUE A WARRANT OR SUMMONS, OR A NOTICE OF SUPERVENING
INDICTMENT UNDER RULE 12.7(c).
b. PREFERENCE OF SUMMONS. A SUMMONS SHALL ISSuE IF THE DEFENDANT IS
NOT IN CUSTODY AN~ ~HE OFFENSE CHARGED IS BAILABLE AS A MA~TER OF
RIGHT, UNLESS THERE IS REASON TO BELIEVE THAT THE DEFENDANT WILL
NOT RESPOND TO IT. ~
c. SUBSEQUENT ISSUANCE OF WARRANT. IF A DEFENDANT WHO HAS BEEN DULY SUMMONED
FAILS TO APPEAR, OR THERE IS REASONABLE CAUSE TO BELIEVE THAT HE WILL FAIL
TO APPEAR, OR IF THE SUMMONS CANNOT READILY BE SERVED OR DELIVERED, AN
ARREST WARRANT SHALL ISSUE.
Comment: Rule 3.l(a). This section follows current Ariz. R. Crim. P. 2 and 154 requirinible
issuance of a warrant or summons when a complaint or direct information is supported b¥ reason
cause. It explicitly recognizes that a magistrate may not independently review the e~ide~ce ce
supporting an indictment. A valid indictment by itself constitutes reasonable causei ~7 ~ss~~n
cf process to bring the accused before the court. The rule permits.process u~on ~n t~
1~e~:ndant's
returned after the defendant has appeared in justice court to consist cf notice
0
e
- 4 -
counsel-of-record of the supe~vening indictment and the day on which the defendant must first
appear in superior cour t. This pzovd si.on .is intended to eliminate the waste currently entailed
in requiring the police to serye a· warrant or summons on a defendant already represented by
counsel and notified of the c~arges against him. In addition, the defendant is often confused by
being arrested again for.the same offense~ . The committee concluded that issuing a warrant or
summons is not necessary 'fo~'the superior court to acquire jurisdiction, since the defendant, by
ap~earing,.consents to jurisaictiop. If he fails to appear, the court can then issue a warrant.
Under Rule 6.3(a) counsel ·is required to' file a notice of appearance whenever he first appears on the
defendant's behalf; he will, a Lao be required to continue representing the defendant until per­mitted
to withdraw under Rules' 6.3(b)' and (c). Thus, the defendant's counsel-of-record will always
be clear.
Rule 3.l(b). This section makes a major change in the relative use of arrest warrant and
summons. At present, the power of the magistrate to issue a summons is limited to those cases
which he is empowered to try. Ariz. R. Crim. P. ll(A) and 155. The Behavior Research Center
statistical study showed that an· arrest warrant is currently used in 93 percent of all felony
and high misdemeanor prosecutions -- a staggering percentage, especially in view of the finding
that 22 percent of those arrested·.are ~eleased on their own recognizance at the initial appearance.
(An additional 28 percent post the bond originally set and are released after the initial appear-ance.)
The almost automatic use of a warrant, therefore, has no relationship to the need for
arrest to secure the accused's presence in court or to protect the community. In fact, the
figures tend to show that ·persons arrested are ~ore likely than those summoned to flee the juris­diction
prior to completion of the case~ Six percent of all cases beginning with an arrest were
still pending at the time·~~ the sur:e~; only four percent of those begun by summons were pending.
The ~rop~sed rule d~emp~asi~~~ the1nature ~f the offense as the primary criterion for issuing
warrants (and setting the conditions of pretrial release -- see Rule 7). The nature of the offense
cannot be ignored, but the .contro·lling factor in deciding w'fi'ether a defendant should be taken
into custody or remain free ought,to be the likelihood of his subsequent appearance before the
court. In making this determination, the magistrate may consider any or all of the factors listed
in Ariz. Rev. Stat. Ann. §l3-1577(c~ (Cum. Supp. 1~71). See Rule 7.4(a) (1). Unjustified arrests
are an expensive burden on the public, an inconvenience to the defendant, and a waste of the
arresting officer's time.
~The oommittee ·intends·. t~·~t the information upon which the magistrate will issue an arrest
warrant will come from t.he
1.prpsecutor rather than directly from law enforcement personnel. How­ever,
it expects that the.prosecutor will.choose to transmit the information in writing, as an
attachment to the complaint;'the committee does not require that the prosecutor personally
appear before the magistrate in order for a warrant rather than a summons to issue.
Rule 3.l(c). Section (c) is drawn from current Ariz. R. Crim. P. ll(D). As under current
law, the court has the inherent power to issue more than one warrant or summons in a particular
case.
3.2. FORM AND CONTENT OF WARRANT OR SUMMONS.
a. WARRANT. THE WARRANT SHALL BE SIGNED BY THE ISSUING MAGISTRATE AND SHALL
CONTAIN THE NAME OF THE DEFENDANT OR, IF HIS NAME IS UNKNOWN, ANY NAME
OR DESCRIPTION .. BY.WHICH HE CAN BE IDENTIFIED WITH REASONABLE CERTAINTY.
IT SHALL S'rA'rE THE.OFFENSE WITH WHICH THE DEFENDANT IS CHARGED AND
COMMAND THAT,THE DEFENDANT.BE ARRESTED AND BROUGHT BEFORE THE ISSUING
MAGISTRATE OR, IF HE IS ABSENT OR UNABLE TO ACT, THE NEAREST OR MOST
ACCESSIBLE MAGISTRATE IN THE SAME COUNTY. IF THE DEFENDANT IS BAILABLE
AS A MATTER OF RIGHT, IT SHALL STATE THE AMOUNT OF A SECURED APPEARANCE BOND.
b. SUMMONS. THE SUMMONS SHALL BE IN THE SAME FORM AS THE WARRANT EXCEPT
THAT IT SHALL.SUMMON THE DEFENDANT TO APPEAR AT A STATED TIME AND PLACE
WITHIN 7 ·.DAYS, OF. THE DATE OF ISSUANCE. AT THE REQUEST OF THE PROSECUTOR
THE SUMMONS SHALL COMMAND THE DEFENDANT TO REPORT TO A DESIGNATED PLACE
TO BE PHOTOGRAPHED AND FINGERPRINTED PRIOR TO HIS APPEARANCE IN RESPONSE
TO THE SUMMONS. FAILURE TO SO REPORT SHALL RESULT IN DEFENDANT'S ARREST
AT THE TIME OF HIS APPEARANCE IN RESPONSE TO THE SUMMONS, UNLESS GOOD
CAUSE FOR SUCH FAILURE IS SHOWN, WHEREUPON THE MAGISTRATE SHALL DIRECT
THE DEFENDANT TO REPORT IMMEDIATELY FOR SUCH PHOTOGRAPHING AND FINGER-PRINTING.
comment: Rule 3.2 is taken from current Ariz. R. Crim. P. 3 and 11~). See also Fed. R. Crim.
P. 4(b). For drafting guidance see Forms II{a), ~I(b) and ~II.
Rule 3.2(a) re~ains the ·~uthority of:the:current rules for return of a warrant befor~ any
other magistrate in the same county, if the issuing magistrate is not available. ~comment
to Rule 4.1.
- 5 -
Rule 3,2(b) compels the magistrate, upon the request of the prosecutor, to command the de­fendant
who is summoned to report to the police station for a mug shot and fingerprinting. This
provision will further the committee's intention, expressed in Rule 3.l(b), that a summons be
uaed in lieu of a warrant to secure the attendance of eligible defendants~ A principal function
of arrest is the obtaining of mug shots and fingerprintsi $Urnmpned defendants ordinarily bypass
those procedures. This rule is intended to accommodate the legitimate needs of law enforcement
investigation with society's and the defendant's interest in minimizing the use of arrest.
This section is not intended to require the appearance of a defendant in a case where forfeiture
of collateral is authorized by law.
3.3. EXECUTION AND RETURN OF WARRANT.
a. BY WHOM. THE WARRANT SHALL BE DIRECTED TO, AND MAY BE EXECUTED BY, ALL
PEACE OFFICERS IN THE STATE.
b. MANNER OF EXECUTION, A WARRANT SHALL BE EXECUTED BY ARREST OF THE DEFENDANT.
THE OFFICER NEED NOT HAVE THE WARRANT IN HIS POSSESSION AT THE TIME OF THE
ARREST, BUT UPON REQUEST HE SHALL SHOW THE WARRANT TO THE DEFENDANT AS SOON
AS POSSIBLE. IF THE OFFICER DOES NOT HAVE THE WARRANT IN HIS POSSESSION AT
THE TIME OF THE ARREST, HE SHALL INFORM THE DEFENDANT OF THE OFFENSE CHARGED
AND OF THE FACT THAT A WARRANT HAS BEEN ISSUED.
c, RETURN, RETURN OF THE WARRANT SHALL BE MADE EITHER TO THE MAGISTRATE WHO
ISSUED IT OR TO THE MAGISTRATE BEFORE WHOM THE DEFENDANT MAKES HIS INITIAL
APPEARANCE,
Comments Rule 3.3 is derived from current Ariz. R. Crim. P. 4 and Fed. R. Crim. P. 4(c). No
substantial change in the law is intended. The subject of arrest, covered by current Ariz. R. Crim.
P. 13 and 14 is deleted as unnecessary in view of Ariz. Rev. Stat, ~nn. 513-1407 (1956). A pro­vision
for return of an arrest warrant is added, since on occasion warrants have been lost or.
misplaced, See State v. Tages, 10 Ariz. App. 127, 457 P.2d 299 (1967)1 State v. OeRoss, 9 Ariz.
App. 497, 45°4P'.2d 167 (1969).
3.4. SERVICE OF SUMMONS.
THE SUMMONS MAY BE SERVED IN THE SAME MANNER AS THE SUMMONS IN A CIVIL ACTION,
EXCEPT THAT SERVICE MAY NOT BE BY PUBLICATION. IN ADDITION, A SUMMONS MAY BE
SERVED BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED. RETURN OF
THE RECEIPT SHALL BE PRIMA FACIE EVIDENCE OF SERVICE.
Comments Rule J,4 is derived in large part from Ariz. R. Crim. P. ll(C). Service by mail is
recommended by ASA, Standards Relating to Pre-Trial Release 53,4 (Approved Draft, 1968). The
problems it could cause are minimals 1£ ~ne defendant appears, the question of regularity of
service is moot1 if he does not, an arrest warrant will issue under Rule 3.l(c).
3.5. DEFECTIVE WARRANT,
A WARRANT OF ARREST SHALL NOT BE INVALIDATED, NOR SHALL ANY PERSON IN CUSTODY
THEREON BE DISCHARGED, BECAUSE OF A DEFECT IN FORM. THE WARRANT MAY BE
AMENDED BY ANY MAGISTRATE TO REMEDY SUCH DEFECT.
Comments This section is taken substantially from Ariz. R. Crim. P. S.
RULE 4. INITIAL APPEARANCE.
4.1. PROCEDURE UPON ARREST.
a, ON ARREST WITHOUT A WARRANT. A PERSON ARRESTED WITHOUT A WARRANT SHALL
BE TAKEN BEFORE THE NEAREST OR MOST ACCESSIBLE MAGISTRATE IN THE COUNTY
OR ARREST, WHEREUPON A COMPLAINT, IF ONE HAS NOT Al;iREADY BEEN FILED,
SHALL BE PREPARED AND FILED PROMPTLY.
- 6 -
b. ON ARREST WITH A WARRANT.
(1) A PERSON ARRESTED IN THE COUNTY IN WHICH THE WARRANT WAS ISSUED
SHALL BE TAKEN BEFORE THE MAGISTRATE WHO ISSUED THE .WARRANT OR
IF HE IS ABSENT OR UNABLE TO ACT, THE NEAREST OR MOST ACCESSIBLE
MAGISTRATE IN THE SAME COUNTY.
(2) A PERSON ARRESTED IN A COUNTY OTHER THAN THE ONE IN WHICH THE
WARRANT WAS ISSUED SHALL BE TAKEN BEFORE THE NEAREST OR MOST
ACCESSIBLE MAGISTRATE IN THE COUNTY OF ARREST. IF SUCH PERSON
IS ELIGIBLE FOR RELEASE AS A MATTER OF RIGHT, HE SHALL BE
RELEASED IN ACCORDANCE WITH RULE 7.2. IF HE IS NOT RELEASED
IMMEDIATELY, THE MAGISTRATE SHALL DIRECT THAT HE BE TAKEN TO
THE COUNTY WHERE THE WARRANT ORIGINATED TO APPEAR BEFORE THE
ISSUING MAGISTRATE OR, IF HE IS ABSENT OR UNABLE TO ACT, BEFORE
THE NEAREST OR MOST ACCESSIBLE MAGISTRATE.
c. TIMELINESS OF APPEARANCE BEFORE MAGISTRATE. A PERSON ARRESTED SHALL BE
TAKEN BEFORE A MAGISTRATE WITHOUT UNNECESSARY DELAY. IF HE IS NOT BROUGHT
BEFORE A MAGISTRATE WITHIN 24 HOURS AFTER ARREST, HE SHALL BE RELEASED
IMMEDIATELY.
d. ASSURANCE OF AVAILABILITY OF MAGISTRATE. THE PRESIDING JUDGE OF EACH
COUNTY SHALL TAKE SUCH STEPS AS ARE NECESSARY TO ASSURE THAT A MAGISTRATE
IS AVAILABLE IN THE COUNTY EVERY DAY OF THE WEEK TO HOLD INITIAL APPEARANCES
REQUIRED BY SECTION (d).
comment: Rules 4.l(a) and (b). These sections combine Ariz. R. Crim. P. 6, 7, 9, 10 and
Ariz. Rev. Stat. Ann. S§l3-1417, -1418 and -1419 (1956 and Cum. Supp. 1971). No substantial change
in current law is intended.
under Ariz. Rev. Stat. Ann. il-215(11) (Cum. Supp. 1971) any justice of the supreme court,
judge of the superior court, justice of the peace, or police magistrate is a "magistrate" for
J?Urposes of Rules 2, 3, 4, and 5 and for all other functions given to "magistrates" by these rules
or by statute. The status and jurisdiction of a judge sitting as a magistrate is neither enlarged
nor diminished by the extent of his jurisdiction to hear or try criminal cases. See,~'
Sheridan v. Superior Court, 91 Ariz. 211, 214, 370 P.2d 949, 951 (1962); Wilson v:---Garrett, 104
Ariz. 57, 448 P.2d 857 (1969); Sta~e ex rel. Mahoney v. Stevens, 79 Ariz. 298, 288 P.2d 1077 (1955);
his duties as a magistrate are entirely separate and apart from his other judicial duties.
This long-standing definition of magistrate is not, in the committee's view, altered by Ariz.
Rev. stat. Ann. §22-301(5) (1971), which includes within the jurisdiction of justices of the peace
"felonies, but only for the purpose of commencing action and conducting proceedings through
preliminary examination and to hold the defendant to answer to the superior court or to discharge
the defendant if it appears that there is not probable cause to believe the defendant guilty of
an offense." As noted by the court in State ex rel. Corbin v. Murry, 102 Ariz. 184, 427 P.2d
135 (1967), this provisi~n was added to limit the ~urisdi7tion of the justice of the peace to
conduct preliminary hearings to cases arising in his pre7inct (~the court's contrary ruling
under the earlier statute, State ex rel. Corbin v. Superior Court, 100 Ariz. 236, 413 P.2d 264,
modified on rehearin, 100 Ariz. 362, 414 P.2d 738 (1966); it was not intended otherwise to reduce
is role as a magistrate, for instance to receive the return of a warrant issued upon return of an
indictment before a superior court judge.
Rule 4.l(a) does not require that a warrant be prepared and signed after a valid arrest
without a warrant; the committee concludes the current practice in this regard is pointless.
The release determination required by Rule 4.l(b) (2) is to be made according to Rule 7.4.
Rule 4.l(c). This provision defines the applicable standard of promptness as without unreason­able
delay and in no event .more than 24 hours after arrest. The "without unreasonable delay" portion
of the standard is taken from Ariz. Rev. Stat. Ann. SS13-1417, -1418 and -1419 (1956 and Cum. Supp.
1971). see also Fed. R. Crim. P. 5(a) (as amended 1972); Mallory v. United States, 354 U.S. 449
~1~57). - --
The committee was concerned by the practice which has developed under the "without unnecessary
delay" standard under which persons arrested on Friday afternoon, Saturday or Sunday are, as a
matter of course, kept in jail until Monday morning or afternoon when judges and lawyers find it
convenient to hold court. It concluded that no person should be held in jail in Arizona for more
ihan 24 hours without requiring the arresting agency to justify his continued incarceration before
a judicial officer.by means of an initial appearance. At that time the accused will be informed
of his legal rights and of the conditions under which he can obtain release pending further
proceedings. It feels strongly that any.inconvenience cau~ed is justified by the importance of
the fundamental rights protected by the intervention of a Judge at the earliest time.
- 7 -
Therefore, the rule requires that an accused be released automatically unless he is taken
before a magistrate within 24 hours of his arrest. However, the rule does not authorize 24-ho11r
incarceration in every case; the police must take,an accused before a mag~strate "without unnecessary
delay", i.e., after necessary booking and investigation procedures are completed. This will be
within less than 24 hours in almost every case unless a magistrate is unavailable before that time.
The rule does not require every ~agistrate to be available 24 hours a day. It requires only
that~ magistrate in each county be available at one time during every day of the week. In
Mohave, Coconino, Yavapai and other sparsely popul~ted counties, local law enforcement officers
will have to decide in each case of a weekend arrest whether to transport the accused to the nearest
magistrate on duty or to release him with a notice to appear on the next cou!t day.
The committee does not intend that a prosecutor be required to appear at such initial appear­ances.
A law enforcement officer can.complete the release questionnaire information (~Rule
7.4(a) (1) and Form IV) and appear with the accused before the magistrate. A formal .complaint is
to be filed promptly; it need not be prepared by the time of the initial appearance if the charges
against the defendant, and reasonable cause to support them, sufficiently appear from the release
questionnaire.
A maximum 24-hour limitation on incarceration without review by a magistrate is a common
provision. The 1968 Omnibus Crime Bill includes a 6 hour provision. A plan recently adopted for
Dade County, Florida requires an initial appearance within 3 hours. The tentative draft of the
ALI Model Code of Pre-Arraignment Procedure includes a 24-hour limit. See also Alaska Stat. §12.
25.150 (24 hour limit); Del. Code Ann. §1911 (24 hour limit); N.B. Ann.-st'a~S94:20-a ("without
~nnecessary delay and in no event later than 24 hours"); R.I. Gen. L. 12-7-13 (24 hours for
residents, 48 hours for non-residents).
The current rule in Arizona is that a delay of even 24 hours is not ipso facto unreasonable
for purposes of suppressing statements obtained from the defendant prior to his initial appearance,
unless it can be shown that the delay was used to coerce the defendant into incriminating himself.
The delay, however, must be considered in determining the voluntariness of any statements made
during this period. State v. Jordan, 83 Ariz. 248, 320 P.2d 446 (1958), cert. denied, 357 U.S.
922 (1958); State v. Ramos, 11 Ariz. App. 196, 463 P.2d 91 (1969); see Mallory, supra; McNabb v.
United States, 318 U.S. 332 (1943). ~
Rule 4.l(d). Clearly, requiring that every arrested person be taken before a magist:ate within
24 hours places a burden on the court system to provide the needed judicial manpower. This rule
requires the presiding judge of each county (defined in Rule 1.4(b)) to see that at least one
magistrate is available within the county every day of the week. Superior court judges, justices
of the peace and city magistrates can be called upon to bear their share of this burden.
The rule will serv~ as a delegation of the chief justice's authority ~ver justices of the
peace to the pre~iding Judge of the superior court of each county.· ~Ariz. Const. art. 6, §3.
He may also use Judges pro tempore, appointed under Ariz. Rev. Stat. Ann. §§12-441 through -444
(Cum. Supp. 1971) to obtain additional judicial m~npower.
4.2. INITIAL APPEARANCE.
a. IN GENERAL. AT THE DEFENDANT'S INITIAL APPEARANCE, THE MAGISTRATE SHALL:
(1) ASCERTAIN THE DEFENDANT'S TRUE NAME AND ADDRESS AND, IF NECESSARY,
AMEND THE FORMAL CHARGES TO REFLECT IT, INSTRUCTING THE DEFENDANT
TO NOTIFY THE COURT PROMPTLY OF ANY CHANGE OF ADDRESS:
(2) INFORM HIM OF THE CHARGES AGAINST HIM;
(3) INFORM HIM OF HIS RIGHTS TO COUNSEL AND TO REMAIN SILENT;
(4) APPOINT COUNSEL IF THE DEFENDANT IS ELIGIBLE FOR AND REQUESTS APPOINTED
COUNSEL UNDER RULE 6; AND
(5) DETERMINE THE CONDITIONS OF RELEASE IN ACCORDANCE WITH RULE 7.2.
b. MISDEMEANORS; FELONIES CHARGED BY INDICTMENT. WHEN A DEFENDANT CHARGED
WITH A MISDEMEANOR OR INDICTED FOR A FELONY IS BROUGHT BEFORE A MAGISTRATE
FOR HIS INITIAL APPEARANCE, HE SHALL, IN ADDITION TO THE PROCEDURES SET
FORTH IN SECTION (a), BE ARRAIGNED IN THE MANNER PRESCRIBED BY RULE 15, IF
COUNSEL IS PRESENT OR WAIVED, UNLESS HE APPEARS BEFORE A MAGISTRATE WITHOUT
JURISDICTION TO TRY THE OFFENSE, WHEREUPON THE MAGISTRATE SHALL TRANSFER THE
CASE TO THE PROPER COURT FOR ARRAIGNMENT.
c. FELONIES CHARGED BY COMPLAINT. WHEN A DEFENDANT IS CHARGED IN A COMPLAINT
WITH A FELONY, THE MAGISTRATE SHALL, IN ADDITION TO THE PROCEDURES REQUIRED
BY SECTION (a):
- 8 -
(1) INFORM THE DEFENDANT OF HIS RIGHT TO A PRELIMINARY HEARING AND THE
CIRCUMSTANCES UNDER WHICH AND PROCEDURES BY WHICH THAT RIGHT MAY
BE WAIVED: AND
(2) UNLESS WAIVED, SET THE TIME FOR A PRELIMINARY HEARING IN ACCORDANCE
WITH RULE 5.l(a).
Comment: This rule prescribes the procedure for the initial appearance. Section (a) prescribes
the procedures which are to be followed in all cases: sections Cb) and (c) provide additional pro­cedures
which must be followed depending on the manner of charging--indictment, information, or
complaint--and on the nature of the offense charged.
Rule 4:2(a). This section is designed to insure procedural compliance with Escobedo v. Illinois,
378 u.s. 478 (1964) and Miranda v. Arizona, 384 U.S. 436 (1966), as well as to provide prompt deter­~
ination of the conditions of release.
Under paragraph (1), the magistrate must ascertain the defendant's true name and address. This
is to insure the correctness of the charging document and to facilitate service. The defendant is
required to notify the court of any change of address. This provision retains the gist, but not
the detail of Ariz. R. Crim. P. 161.
Paragraph (2) requires that the defendant be advised of the charges against him. This can be
done by giving the defendant a copy of the complaint, information or indictment, or by relating the
information supplied by the law enforcement agency in the release questionnaire (Form IV). See
Ru 1 e 7 • 4 (a ) ( 1 ) •
Paragraph (3) requires notice to a defendant of his right to remain silent, his right to
counsel under Rule 6.l(a), his right to waive representation by counsel under Rule 6.l(c), and,
where applicable, his right to appointed counsel under Rule 6.l(b).
Under paragraph (4), if the defendant is indigent and requests counsel, the magistrate shall
appoint counsel or cause counsel to be appointed under Rule 6.2. Rule 6 specifically provides for
appointment of counsel at the initial appearance and for compensation of counsel for justice court
representation. See Rules 6.l(a), 6.2 and 6.7(c) and comments thereto. Coleman v. Alabama, 399
u.s. 1 (1969): AB~Standards Relating to Providing Defense Services §5.2 (1968).
under paragraph (5) the magistrate must determine the conditions of release. The range of
possible conditions and the standards and procedures for determining what conditions of release
will be imposed are set forth in Rule 7. The magistrate before whom a defendant arrested in another
county is brought for his initial appearance is not bound by a previous release determination in
the case. ~Rules 7.4(c) and (d).
Rule 4.2(b). This provision applies when a low misdemeanor is filed by complaint in justice
or city magistrate court,~ Ariz. R7v •. stat. Ann. §~2-301(4) (Cum. Sup~. 1971), or wh7n an infor­mation
charging a misdemeanor, or an indictment charging a felony or a misdemeanor is filed in
superior court. In these instances the defendant shall be arraigned at his initial appearance if
counsel is present or waived. (A waiver may be for purposes of the arraignment only, provided
the defendant enters a not guil~y plea.) ~Rule 15.3. When a misdemeanor complain~ is filed
with a superior court judge ac~ing.as a magistra~e.o~ a defendant arrested.on a superior court
warrant is brought before the JUStice court for initial appearance C~ ... ! ... g_.! . .t in small counties when
the superior court judge is out of town), the procedures under section (a) should be followed and
~he case then transferred to the proper c~u:t for.arraignment. T~is insures that the defendant
is advised of his rights and has the conditions of release determined as soon as possible.
Rule 4.2(c). Ariz. Const. art. 2, §30 (1956) provides a right to a preliminary hearing in all
felony cases except those commenced b¥ grand jury ind~ctment. Thus, this section requires, in add­ition
to the notifications and d7t7rmination~ of sect7on ~a), that the magistrate inform the
defendant of his right to a preliminary hearing and his right to, and the procedures for, waiving
~hat right under Rule 5.l(b). Under Rule S.l(b) the defendant will not be able to waive a
preliminary hearing until he is represented by counsel.
5.1.
PRELIMINARY HEARING.
RIGHT TO PRELIMINARY HEARING: WAIVER: POSTPONEMENT.
RIGHT TO PRELIMINARY HEARING. WHEN A COMPLAINT IS FILED CHARGING THE
DEFENDANT WITH THE COMMISSION OF A FELONY, A PRELIMINARY HEARING SHALL
COMMENCE BEFORE A MAGISTRATE NOT LATER THAN 6 DAYS FOLLOWING HIS INITIAL
APPEARANCE IF THE DEFENDANT IS IN CUSTODY AND NOT LATER THAN 20 DAYS
FOLLOWING HIS INITIAL APPEARANCE IF THE DEFENDANT IS NOT IN CUSTODY UNLESS:
a.
RULE 5.
(1) THE COMPLAINT HAS BEEN DISMISSED:
(2) THE HEARING IS WAIVED: OR
(3) THE MAGISTRATE ORDERS THE HEARING POSTPONED AS PROVIDED IN SECTION (c).
- 9 -
A DEFENDANT WHO IS IN CUSTODY MAY DEMAND THAT THE PRELIMINARY HEARING
BE HELD AS SOON AS PRACTICABLE, WHEREUPON THE MAGISTRATE SHALL COMMENCE
THE HEARING FORTHWITH WITH ONLY SUCH DELAY AS IS NECESSARY TO SECURE
THE ATTENDANCE OF COUNSEL, COURT REPORTER AND NECESSARY WITNESSES.
b. WAIVER. A PRELIMINARY HEARING MAY BE WAIVED BY WRITTEN WAIVER, SIGNED
BY THE DEFENDANT, HIS ~OUNSEL AND THE PROSECUTOR.
c. POSTPONEMENT. IF A PRELIMINARY HEARING HAS NOT BEEN COMMENCED WITHIN
6 DAYS AS REQUIRED IN SECTION (a), THE DEFENDANT SHALL BE RELEASED FROM
CUSTODY AUTOMATICALLY, UNLESS HE IS CHARGED WITH A NON-BAILABLE OFFENSE,
WHEREUPON THE MAGISTRATE SHALL IMMEDIATELY NOTIFY THE CHIEF JUSTICE OF
THE ARIZONA SUPREME COURT OF THE DELAY AND THE REASONS THEREFOR. UPON
MOTION OF ANY PARTY, OR ON HIS OWN INITIATIVE, THE MAGISTRATE MAY POST­PONE
THE HEARING BEYOND THE 20-DAY TIME LIMIT SPECIFIED IN SECTION (a),
UPON FINDING THAT EXTRAORDINARY CIRCUMSTANCES EXIST AND THAT DELAY IS
INDISPENSABLE TO THE INTERESTS OF JUSTICE, ENTERING A WRITTEN ORDER
DETAILING THE REASONS FOR HIS FINDING AND GIVING THE PARTIES PROMPT
NOTICE THEREOF.
Comment: Rule 5 implements Ariz. Const. art. 2, §30 which guarantees a preliminary hearing
to persons accused of a felony by means other than a grand jury indictment.
Rules 5.l(a) and (c). Under Ariz. R. Crim. P. 16-21 the preliminary hearing is supposed to
be held as part of the defendant's initial appearance before a magistrate unless the defendant
waives his right thereto. A delay may be had to secure counsel or for other good cause shownl but
the hearing may not be delayed for more than 6 days. In practice, few if any preliminary hearings
are held "immediately" at the initial appearance. The difficulty of getting counsel, witnesses,
and a court reporter to the courtroom and prepared for a hearing "without unnecessary delay" after
the defendant's arrest, especially outside Maricopa and Pima counties, make an "immediate" hearing
impossible. Especially in drug and other cases in which extensive laboratory tests are necessary,
the prosecution witnesses are not available within 6 days. In practice, the 6-day limit ~s usua~ly
waived. Statistics compiled for the committee by Behavior Research Center show a state-wide
average of 20 days between initial appearance and preliminary hearing; in the one-judge counties.'
an average of 55 days elapses between initial appearance and preliminary hearing.
Rules 5.l(a) and (c) together with Rules 3.l(b), 4.l(c), and 7.2(a) are an attempt
to achieve the purposes of the current rules within the limitations of practicality. The
committee recognizes the importance of having a mechanism by which an accused may test the charges
against him promptly. It also recognizes the inherent physical problems caused by Arizona's size.
and demographic distribution and the fact that if the requirements for the prelimina~y hearing
are too rigid, the prosecution will turn more and more to the grand jury where possible, thereby
eliminating the defendant's only opportunity to test the case against him. ~ ~ei~erg and
Weinberg, The Congressional Invitation to Avoid the Preliminary Hearing: An Analysis of s3o3
of the Federal Magistrates Act of 1968, 67 Mich. L. Rev. 1361 (1969).
The committee further recognizes that the most serious form of injustice occasioned by a
delayed preliminary hearing occurs when the defendant is incarcerated for an undue length of
time without having a chance to prove his innocence. The practical resolution of the prob~e~
therefore seems to be to reduce the incidence of automatic incarceration prior to the preliminarY:
hearing while retaining the strong safeguards of the current rules in cases
where the defendant does remain in custody. Accordingly, the use of a summons is preferred to 11
use of a warrant. The defendant must be brought before a magistrate "without unnecessary delay
after an arrest if a warrant is used. The magistrate is to release him O.R. or on "the least
onerous conditions which will assure his appearance." If he remains in custod~, he may demand
a preliminary hearing "as soon as practicable"--i.e., as soon as counsel and witnesses can be
assembled. In essence, the defendant is given~ same rights as under the current r~les; only
the unrealistic inference of a truly "immediate" hearing is removed. If the defendant is iX:
custody, he can, by demanding a preliminary hearing "as soon as practicable," be give~ a quick
escape from the criminal system; if he does not make such a demand, factors of convenience and
judicial administration are allowed to delay the hearing for up to 6 days.
The committee originally concluded that a 10-day limit would be sufficient to prese~ve the
defendant's rights. However there was substantial sentiment among some members to reta7n the
"immediate" preliminary hearlng requirement of the current rules. The "as soon as practicable'.' _
standard, coupled with a reduction of the overall limit from 10 to 6 days, repre~e~ts t~e c~mmit
tee's final compromise between the competing demand of the ideal and the real criminal Justice
systems.
If a preliminary hearing cannot be held within 6 days, the defendant must be re~e~sed from
custody if he is charged with a bailable offense, i.e., the magistrate must set conditions of
release which the defendant can meet. If he is charged with a non-bailable offense, the magis­trate
must immediately notify the chief justice; the committee concluded th~t a s~nction of
dismissal of the charges would be too severe in this situation and that notification of the
state's highest judicial officer would insure that delay would not occur unless absolutely
unavoidable.
- 10 -
If the defendant is released from custody, the rule allows the date of the preliminary
hearing to be continued upon a showing that extraordinary circumstances exist which make delay
indispensable to the interests of justice. This is the strict continuance standard of Rule e.s·
the committee intends that continuances will be granted neither easily nor often. However, the'
rule does not set any.absolute c~t-off point by which time the preliminary hearing must be held.
see Rule 8.5 (where the same policy is applied to trial continuances). The 90 and 120 day rules
or-Rule 8.2 should exert sufficient pressure on all parties responsible for the completion of
the preliminary hearing to assure that unreasonable delay does not occur.
If a continuance is granted, the hearing should be reset for a specific date to avoid
uncertainty and additional delay.
One source of delay currently experienced in preliminary hearings is eliminated by Rule 6.l(e),
which allows the court to proceed even though the defendant appears without counsel if he has had
a reasonable opportunity to retain a lawyer.
If the hearing is waived.or the charges dismissed (as upon return of a grand jury indictment,
see Wilson v. Garrett, 104 Ariz. 57, 448 P.2d 857 (1966); Carter v. Eyman, 5 Ariz. App. 210, 424
P°:2d ass (1967)) no hearing need be held. .
Rule 5.l(b). The better practice in our courts today is to obtain a signed written waiver
from the defendant when he announces he does not wish a preliminary hearing; this practice is
incorporated into the rule. The defendant may not waive the preliminary hearing without the
consent of an attorney. The committee was concerned with the seemingly insoluble problem of
preliminary hearing waivers prior to appointment of counsel, followed by remand when counsel is
appointed in superior court. The best solution appears to be an absolute requirement of assent
of counsel to all waivers.
The committee intends that the waiver of the preliminary hearing be final in all normal cases.
No provision for conditional waiver--~, waiver contingent upon agreement to a plea in superior
court--is contained in the rule. No conditional waivers should be recognized.
The rule gives the prosecutor the right to demand a preliminary hearing in order to safe­guard
his legitimate interests in washing out at an early stage weak cases and those not deserving
prosecution. It also permits an early determination of a witness's willingness to testify in
court and perpetuation of the testimony of prosecution witnesses who may soon leave the jurisdiction.
5.2. SUMMONING OF WITNESSES AND COURT REPORTER.
THE MAGISTRATE SHALL ISSUE PROCESS TO SECURE THE ATTENDANCE OF WITNESSES AND
SHALL SECURE A COURT REPORTER TO RECORD THE PROCEEDINGS, UNLESS THE REPORTER
IS WAIVED BY BOTH PARTIES.
conunent: This rule parallels Ariz~ R. Crim. P. 22. Its principal function is to provide a
means for subpoenaing defense witnesses, since Ariz. Rev. Stat. Ann. Sl3-182l(B) (2) (1956) permits
the prosecutor to issue process to compel attendance of prosecution witnesses. The authority of
the justice of the peace to order attendance of a witness is contained in Ariz. Rev. Stat. Ann.
§13-1827 (1956); out-of-county witnesses must be subpoenaed by the superior court.
The magistrate has the responsibility for obtaining a court reporter, unless both parties
consent to the absence of a reporter. Under current practice a reporter is.invariably called;
the rule thus makes no major change in the status .quo.
5.3. NATURE OF THE PRELIMINARY HEARING •.
a. PROCEDURE. THE PRELIMINARY HEARING SHALL BE HELD BEFORE A MAGISTRATE
WHO SHALL ADMIT ONLY SUCH EVIDENCE AS IS MATERIAL TO THE QUESTION OF
WHETHER OR NOT PROBABLE CAUSE EXISTS TO HOLD THE DEFENDANT FOR TRIAL.
ALL PARTIES SHALL HAVE THE RIGHT TO CROSS-EXAMINE THE WITNESSES TESTI­FYING
PERSONALLY.AGAINST THEM, AND TO REVIEW THEIR PREVIOUS WRITTEN
STATEMENTS PRIOR TO SUCH CROSS-EXAMINATION. AT THE CLOSE OF THE PROSE­CUTION'S
CASE, INCLUDING CROSS-EXAMINATION OF PROSECUTION WITNESSES BY
THE DEFENDANT, THE MAGISTRATE SHALL DETERMINE AND STATE FOR THE RECORD
WHETHER THE PROSECUTION'S CASE ESTABLISHES PROBABLE CAUSE. THE DEFENDANT
MAY THEN MAKE A SPECIFIC OFFER OF PROOF, INCLUDING THE NAMES OF WITNESSES
WHO WOULD TESTIFY TO OR PRODUCE THE EVIDENCE OFFERED. THE MAGISTRATE
SHALL ALLOW THE DEFENDANT TO PRESENT THE OFFERED EVIDENCE, UNLESS HE
DETERMINES THAT IT WOULD BE INSUFFICIENT TO REBUT THE FINDING OF PROBABLE
CAUSE.
INAPPLICABILITY OF SUPPRESSION MOTIONS. RULES OR OBJECTIONS CALLING FOR
THE EXCLUSION OF EVIDENCE ON THE GROUND THAT IT WAS OBTAINED UNLAWFULLY
SHALL BE INAPPLICABLE IN PRELIMINARY HEARINGS.
b.
- 11 -
Comment: The committee's major concern with respect to the preliminary hearing was the
reported.abuse of the heari~g by defense counsel to subpoena all potential prosecution witn7sses
for examination. The Behavior Research Center study showed that this happens very rarely; in
85% of all preliminary hearings studied the defense called no witnesses; in another 8% only the
defendant himself testified; in only 1% of all cases did the-defense call more than 5 witnesses.
Thus, the extent of this abuse is minimal on a statewide basis.
The corrunittee therefore concluded not to recommend a drastic change in the procedure at the
hearing, such as allowing the magistrate to terminate the hearing whenever he found that probable
caus7 had been demonstrated. On the other hand, the committee felt strongly that the preliminary
hearing should be restored to its original function as an early means of exoneration for a
defendant wr~ngly accused. Its use as a blatant discovery device, even if on a limited basis, is
un~arranted in a procedural system which contains an alternative, such as Rule 16, for fuller,
fairer, less time-consuming discovery. Thus, the corrunittee has attempted to return the preliminary
hearing once again to its role as a preliminary proving ground for the adequacy of the prosecution.
Four devices are utilized as a means for limiting the extent and duration of the hearing:
. 1. An admonition to the magistrate that the evidence be limited to the question of probable
cause, thereby eliminating most questions concerning credibility, affirmative defenses
and other matters traditionally decided at the trial;
2. Specific use of the term "material," providing the magistrate with a basis in the rule
~or refusing to hear testimony which lacks direct probative value on the probable cause
issue;
3. Relieving the magistrate of the obligation of hearing defense evidence, unless the
defendant by specific offer of proof shows its materiality to the existence of probable
cause. Thus, the defense will not be able to call witnesses to the stand for discovery
purposes, but will remain entitled to present testimony which would tend to explain
away the contemplated charge. This provision overrules State v. Essman, 98 Ariz. 228,
403 P.2d 540 (1965) and limits current Ariz. R. Crim. P. 26.
4. Removing motions to suppress evidence from the preliminary hearing altogether. Complex,
sophisticated legal issues cannot be decided at the preliminary hearing stage; the
parties have had little time to prepare, and the magistrate in some cases is not ~ven .
a lawyer. Also, the prosecutor has no effective way to appeal a magistrate's.s~~?rc~sion
order. Rule 5.3(b) thus limits such issues--whether they are called suppressicn rnotio~s
or objections to the "competency" of the evidence--to decision by the trial court. This
section reverses the ruling in State v. Jacobson, 106 Ariz. 129, 471 P.2d 1021 (1970),
and adopts instead the federal standard. Giordenello v. United States, 357 U.S. 480
(1958); Fed. R. Crim. P. S.l(a) (April, 1972).
The defendant retains his right to full cross-examination, including the use of Jencks
statements; however, he will not be entitled, under Rule 16.3(a), to depose any witness who ha~ .
been examined at the preliminary hearing. This coordinates the defendant's discovery opportunities;
he is entitled to one such opportunity, but only one.
The subject of recording and use at trial of preliminary hearing testimony, covered by Ariz.
R. Crim. P. 28, 29, 30 and 31, is contained in Rule 22.J(c).
5.4. DETERMINATION OF PROBABLE CAUSE.
a. HOLDING A DEFENDANT TO ANSWER. IF IT APPEARS FROM THE EVIDENCE THAT
THERE IS PROBABLE CAUSE TO BELIEVE THAT AN OFFENSE HAS BEEN COMMITTED
AND THAT THE DEFENDANT COMMITTED IT, THE MAGISTRATE SHALL ENTER A WRITTEN
ORDER HOLDING THE DEFENDANT TO ANSWER BEFORE THE SUPERIOR COURT AND, UPON
REQUEST, RECONSIDER THE CONDITIONS OF RELEASE.
b. AMENDMENT OF COMPLAINT. THE COMPLAINT MAY BE AMENDED AT ANY TIME TO
CONFORM TO THE EVIDENCE BUT THE MAGISTRATE SHALL NOT HOLD THE DEFE~WANT
TO ANSWER FOR A CRIME DiFFERENT FROM THAT CHARGED IN THE ORIGrnAL Cu~·IT'LAI~:7•
c. EVIDENCE. THE FINDING OF PROBABLE CAUSE SHALL BE BASED ON SUBSTANTIAL
EVIDENCE, WHICH MAY BE HEARSAY IN WHOLE OR IN PART IN THE FOLLOWING FORMS:
(1)
(2)
WRITTEN REPORTS OF EXPERT WITNESSES;
DOCUMENTARY EVIDENCE WITHOUT FOUNDATION, PROVIDED THERE IS A SUBSTAN­TIAL
BASIS FOR BELIEVING SUCH FOUNDATION WILL BE AVAILABLE AT TRIAL
AND THE DOCUMENT IS OTHERWISE ADMISSIBLE;
EXPECTED TESTIMONY OF A WITNESS, EXCEPT IDENTIFICATION TESTIMONY
NECESSARY TO CONNECT THE DEFENDANT WITH THE CRIME, PROVIDED
(3)
- 12 -
(i) THE TESTIMONY WAS PERSONALLY RELATED BY THE SOURCE TO THE
TESTIFYING WITNESS;
(ii) THERE IS A SUBSTANTIAL BASIS FOR BELIEVING THE SOURCE TO BE
CREDIBLE, AND FOR BELIEVING THAT THERE IS A FACTUAL BASIS FOR
THE INFORMATION FURNISHED;
(iii) THERE IS A SUBSTANTIAL BASIS FOR BELIEVING THE SOURCE WILL BE
AVAILABLE TO TESTIFY AT THE TRIAL; AND
(iv) THE LAW ENFORCEMENT OFFICER OR OFFICERS WHO DID THE PRINCIPAL
INVESTIGATION OF THE INCIDENT AND ARRESTED THE DEFENDANT ARE
AVAILABLE FOR CROSS-EXAMINATION.
THE MAGISTRATE SHALL CONSIDER THE FACT THAT EVIDENCE IS HEARSAY IN MAKING
HIS DETERMINATION OF PROBABLE CAUSE.
d. DISCHARGE OF THE DEFENDANT. IF IT APPEARS FROM THE EVIDENCE THAT THERE
IS NOT PROBABLE CAUSE TO BELIEVE THAT AN OFFENSE HAS BEEN COMMITTED OR THAT THE
DEFENDANT COMMITTED IT, THE MAGISTRATE SHALL DISMISS THE COMPLAINT AND
DISCHARGE THE DEFENDANT.
CoIYUTient: Rule 5.4(a). Ariz. R. Crim. P. 33(A) requires the magistrate actually to find that
an offense has been committed; the proposed rule requires him only to find probable cause to
believe that it has been committed. The committee could perceive no reason to differentiate
between the findings as to the crime and the defendant.
The rule intends no change in the standard for determining probable cause. See,~' Drury v.
~' 107 Ariz. 124, 483 P.2d 539 (1971); In Re Anonymous, 14 Ariz. App. 466, 484 P.2d 235 (1971).
The committee has deleted the detailed provisions of Ariz. R. Crim. P. 34 (form of commitment
order) and 37 (examination in another county) as unnecessary. See Form IX for a standard. bind­over
order. It dropped all reference to trial in the justice court, Ariz. R. Crim. P. 32(C)
because Rule 5.l(a) provides for a preliminary hearing for a felony only, and Rule 5.4(b) gi~es
the magistrate no power to amend the crime charged.
Rule 5.4(b). The magistrate--whether a justice, judge, justice of the peace, or city
magistrate--is authorized to amend the complaint to corr7ct onlr minor mistakes in allegat~ons
of fact. He has no power to amend the charge; he must either bind the defendant over or dismiss
the complaint. Therea~ter the prosecutor may fil7 another.complaint, This is the current Arizona
rule. see Ariz. R. Crim. P. 32(A); State v. Colvin, 81 Ariz. 388, 307 P.2d 98 (1957); Application
of Willraffis, 85 Ariz. 109, 333 P.2d 280 (1958); State v. Bowman, 103 Ariz. 482, 445 P.2d 841
(1968) •
Rule s.4(c). The coIYUTiittee proposes extensive use of hearsay at preliminary hearings; this
follows the national trend away from the strict common law hearsay limitations. There is no
constitutional requirement that hearsay be excluded from a preliminary probable cause proceeding.
see Costello v. united States, 350 U.S. 359 (1956) (upholding a grand jury indictment based
solely upon hearsay testimony of three government agents). The court stated unequivocally that
the fifth amendment does not lay down the standards to be followed by the grand jury. Id., at
363•
see Holt v. united States, 218 U.S. 245 (1910). This should be even more true of-a prelimi­nary
hearing, which is not a creature of the constitution. ~Hurtado v. California, 110 u.s.
516 (1884).
In Washington v. Clemmer, 339 F.2d 715, 724, aff'd on appeal from remand, 339 F.2d 725
(D.C. Cir. 1964), then Judge Burger, citing an address by then Chief Justice Warren, stated:
Few legal concepts have been more universally accepted than
the proposition that "competent" evidence before a magistrate
to establish probable.cause at that stage is very different
from "competent" evidence in the context of a criminal trial.
Accord warren, Address to Annual ~eet~ng of the Am7ric~n Law Insti~ute, 41 A.L.I. Proc. 31 (1964).
The u.s. District court for the District of.Coll;lmhia, in U.S. v. Hinkle, 307 F. Supp. 117, 121
(l969), interpreting Fed. R. Crim. P. S(c) in light of the 1968 Federal Magistrates Act, .18
u.s.c.A. §3060 (1969) noted the above lanquage, stating that:
This court is in complete agreement with the proposition that
probable cause may be demonstrated other than from the mouth
of the complaining witness.
Among the federal courts, only the Second Circuit has looked unkindly upon a grand jury's use of
hearsay. united states v. Umans, 368 F.2d 725 (2d ~ir. 1966), cert. dis~issed as improvidently
granted, 389 u.s. 80 (1967); Un~ted States v. Arcuri, 405 F.2d 691 (2d Cir. 1968); United States
v. Leibowitz, 420 F.2d 39 (2d Cir. 1969).
- 13 ..
The arguments in favor of allowing hearsay at the preliminary hearing are largely pragmatic
ones. Ways must be found to make the proceeding less cumbersome if its advantages to both prose­cution
and defense are not to be lost because of the ease and speed of the grand jury procedure.
See Weinberg and Weinberg, The Con ressional Invitation to Avoid the Prelimina Hearin: An
Analysis of S303 of the Federal Magistrates Act of 1968, 67 Mic • L. Rev. 1361 1969). Further­more,
permitting the investigating officer to relate the prospective testimony of other witnesses
alleviates a major economic and psychological burden on the victim and other persons directly
involved with the offense. The magistrate can be expected to give appropriate weight to different
forms of testimony.
The.objections to the use of hearsay are two-fold. The first is the loss of discovery
opportunities at the preliminary hearing. See United States v. Blue, 342 F.2d 894, 901 (D.C.
Cir. 1964). However, as noted in the comme~to Rule 5.3, the committee makes no attempt to
retain the discovery function of the preliminary hearing. The second objection is based on the
importance to the defendant of being bound over for trial--loss of liberty, the need to make bond,
unfavorable publicity, and the cost and embarrassment of a public trial--and the need for the most
reliable information on which to base that determination. see comment, 15 Kans. L. Rev. 374, 380
(1967); Joint Anti-Fascist Refugee Committee v. McGrath, 3-:ri-u.s. 123 (1951). ~~Costello,
supra.
The nationwide trend seems to be away from both the suspicion of hearsay and the need for
extensive preliminary hearing testimony. In recent months the U.S. Supreme Court announced
amendments to Fed. R. Crim. P. 5.1 permitting a finding of probable cause based "upon substantial
evidence which may be hearsay in whole or in part." The experience of the D.C. and Second Circuits
seems to show (despite the fulminations of the latter) that in the vast majority of cases the
preliminary hearing can utilize a relatively relaxed standard for the use of hearsay, with a few
fundamental safeguards. This is the experience of the two members of the comrnittee and staff who
have practiced in the District of Columbia. The committee is convinced that the defendant,
represented by competent counsel with a full opportunity vigorously to cross-examine the witnesses,
will not be prejudiced by this rule.
Sections (1) and (2) represent only minor dilutions of the hearsay rule. One of the principle
causes of preliminary hearing delays at present is the unavailability of police experts, especially
lab chemists for testimony in drug cases. Section (1) allows an expert's testimony to be presented
by means of a written report. The report will be admissible only for those matters as to which
the writer qualifies as an expert. The committee does not require a showing that the expert be
available to testify at trial, because the expert's conclusions will usually be stipulated to
(see Rule 17.6 and Form XIX). Even if the reporting expert is unavailable, the state can
produce another to substantiate his conclusions at trial.
Documentary evidence may be admitted without proper foundation under section (2), upon a
satisfactory showing that the foundation will be available at the trial.
Section (3) goes further, however, allowing witnesses' expected testimony to be related by
hearsay. The committee includes a host of safeguards however. Two of them are limitations
contained in the January 1, 1970 Preliminary Draft of amendments to Fed. R. Crim. P. S.l(a), but
not included in the amended federal rule:
a substantial basis for believing the source of the hearsay
to be credible and for believing that there is a factual basis
for the information furnished.
The committee intends by this language to incorporate the ordina:y standa7ds whic~ a reason~ble
man instinctively applies to hearsay in everyday life--weighing it according to his evaluat~on of
its source and against the other facts known to him. In addition, only first-hand hearsay is
permitted, i.e., an out-of-court statement which the testifying witness has heard directly from
the actual witness. "Eyeball" identification testimony cannot be introduced through
hearsay--the witness who actually saw the defendant steal a car must testify although the ?wner
of the car need not come down to identify the car and affirm that it was stolen. The c~mmittee
intends to require the prosecution to present at least one witness who can personallr tie the
defendant to the criminal event, unless probable cause can be established entirely w7thout such
personal identification. Also, the investigating and arresting officers must be availa~l7 ~o
testify in person. The committee felt strongly that the rules should preclude the possibility of
a specially-trained liaison officer presenting all preliminary hearing testimony on behalf of.the
entire police department on the basis of a cursory review of the departmental report. In addi­tion,
the investigating and arresting officer have the best information concerning the events
and will be helpful to the magistrate in evaluating other hearsay presented. Finally, the
magistrate is not required to credit the hearsay testimony admitted. At the close
0~
the
prosecutor's case, he must evaluate all the evidence, viewing each item in terms of.it~ own ms
credibility and rule accordingly. counsel can help him .in this det~rrnination by bringing proble
connected with tenuous hearsay to his attention.
Rule 5.4(d). This section follows Ariz. R. Crim. P. 32(B).
S.S. REVIEW OF PRELIMINARY HEARING.
a. GROUNDS. A MAGISTRATE'S DETERMINATION TO BIND OVER A DEFENDANT TO
SUPERIOR COURT SHALL BE REVIEWABLE ONLY BY MOTION FOR A NEW FINDING
- 14 -
OF PROBABLE CAUSE ALLEGING THAT THE DEFENDANT WAS DENIED A SUBSTANTIAL
PROCEDURAL RIGHT OR THAT NO CREDIBLE EVIDENCE OF GUILT WAS ADDUCED
ALLEGING SPECIFICALLY THE WAYS IN WHICH SUCH EVIDENCE WAS LACKING.
b. TIMELINESS. A MOTION UNDER RULE 5.5(a) MAY BE FILED NO LATER THAN
10 DAYS AFTER THE PRELIMINARY HEARING TRANSCRIPT HAS BEEN FILED.
c. EVIDENCE. REVIEW OF THE EVIDENCE SHALL BE LIMITED TO THE TRANSCRIPT
OF THE PROCEEDINGS.
d. RELIEF. IF THE MOTION IS GRANTED, THE CASE SHALL BE RETURNED TO THE
MAGISTRATE WITH APPROPRIATE INSTRUCTIONS. UNLESS A NEW PRELIMINARY
HEARING IS COMMENCED WITHIN 10 DAYS AFTER ENTRY OF THE REMAND ORDER,
THE CASE SHALL BE DISMISSED. .
Comment: Rule S.S(a). This provision eliminates the dichotomy between motions to quash
(for legal insufficiencies) and petitions for writ of habeas corpus (for factual insufficiencies)
under current Arizona law. ~'~'State v. Colvin, 81 Ariz. 388, 307 P.2d 98 (1957); State
v. Abbott, 103 Ariz. 336, 442 P.2d 80 (1968). A single remedy--a motion to repeat the probable
cause proceeding--is created.
The grounds for the motion include legal insufficiency, tempered as under Ariz. R. Crim. P.
36 by the requirement of a "substantial" de~ect, and factual insufficiency so great as to result
in a deprivation of due process of law. This follows the current standard applied by reviewing
judges; if "some evidence" of guilt appears in the transcript, the habeas corpus petition is
denied. The committee concluded that the "credible evidence" standard is a more restrictive
review standard than "reasonable evidence." Note also that the reviewing court's standard is
far different from that imposed on the magistrate--"substantial evidence." This is appropriate
in view of the different functions of fact-finding and reviewing courts.
substantive defects in the prosecution not remediable by remand for futher evidence can be
raised by motion under Rule 17.7(b).
Rule 5.5(b). A strict early time limit is imposed on filing the motion in order to avoid
disruption of later proceedings and to eliminate its use as a delay device. The motion is due at
the same time as the defendant's disclosures,~ Rule 16.2, and may be disposed of at or before
the omnibus hearing which is to be held about 10 days later. ~Rules 5.6, 17.3 and 17.4.
Rule 5.5(c)., This sectio~ ~imits rev~ew of the s~ffi?iency of the e~idence to the transcript
of the proceedings at the preliminary hearing. No affidavits or other evidence may be considered
by the superior court in reviewing the bind-over; any new evidence will be appropriate for trial,
or a motion to dismiss under Rule 17.7(b), but the probable cause determination should not be
upset by later-discovered facts.
An attack of the preliminary hearing procedures, however, may be established by evidence
outside the record before the magistrate.
Rule 5.5(d) •. The defendant's remedy is not dismissal of the charges, but only a remand for
reconsideration on appropriate instructions; the remedy can ripen into dismissal if a timely
reconsideration is not held.
S.6. TRANSMITTAL AND TRANSCRIPTION OF RECORD.
WITHIN 3 DAYS AFTER WAIVER OR CONCLUSION OF THE PRELIMINARY HEARING, THE
MAGISTRATE SHALL TRANSMIT ALL PAPERS AND RECORDS IN THE CASE, TOGETHER WITH
A PRESCRIBED TRANSMITTAL FORM, TO THE CLERK OF THE SUPERIOR COURT. THE
REPORTER SHALL FILE THE TRANSCRIPT IN THE SUPERIOR COURT NO LATER THAN 20
DAYS AFTER THE COMPLETION OF THE HEARING IF EITHER PARTY REQUESTS THAT THE
TRANSCRIPT BE PREPARED.
comment: An unnecessary source of wasted time under the current rules is the transmittal of
the justice court record under the "without delay" standard of current Ariz. R. Crim. P. 35(A).
The Behavior Research center study showed that on the average, it takes 35 days to transfer the
magistrate's papers, prepare and file an info:m~tion and ~et a~d hold the arraignment--fully
22%
of the entire time needed to process a cri~inal.case in Arizona from the initial appearance
to sentencing. These rules will provid~ a maximum interval of 15 days between preliminary hearing
and arraignment. The committee is convinced that 3 days is adequate for the magistrate to assemble
and mail or deliver the record in every case; the prosecutor is allowed 5 days from the bind-over
order within which to file the information. The arraignment is to be held within 10 days there­after.
The rule contemplates the use of~ sta~dard form noting the items transmitted. The need for
such a form has been brought to the committees attention by superior court clerks who are incon­venienced
by variations in the procedure~ of different justice of the peace precincts. The court
reporter is required to file the transcript at a time which will correspond with the prosecutor's
disclosure obligation -- 10 days after the ~rraignmen~. See Rule 16.1. This is the same time
limit imposed on the reporter. for transcribing grand JUry proceedings under Rule 12.8(c).
- 15 -
RULE 6.
III. RIGHTS OF PARTIES
ATTORNEYS, APPOINTMENT OF COUNSEL.
RIGHTS TO COUNSEL AND OTHER DEFENSE SERVICES; WAIVER OF RIGHTS TO COUNSEL.
a. RIGHT TO BE REPRESENTED BY COUNSEL. A DEFENDANT SHALL BE ENTITLED TO BE
REPRESENTED BY COUNSEL IN ANY CRIMINAL PROCEEDING. THE RIGHT TO BE
REPRESENTED SHALL INCLUDE THE RIGHT TO CONSULT IN PRIVATE WITH AN ATTORNEY,
OR HIS AGENT, AS SOON AS FEASIBLE AFTER A DEFENDANT IS TAKEN INTO CUSTODY,
AT REASONABLE TIMES THEREAFTER, AND SUFFICIENTLY IN ADVANCE OF A PROCEEDING
TO ALLOW ADEQUATE PREPARATION THEREFOR. ABSENT A KNOWING AND INTELLIGENT
WAIVER, NO PERSON MAY BE INCARCERATED FOR ANY OFFENSE UNLESS HE WAS
REPRESENTED BY COUNSEL AT TRIAL.
b. 'RIGHT TO APPOINTED COUNSEL. AN INDIGENT DEFENDANT SHALL BE ENTITLED TO
HAVE AN ATTORNEY APPOINTED TO REPRESENT HIM IN ALL CRIMINAL PROCEEDINGS
FOR ANY FELONY AND FOR ANY OTHER OFFENSE, HOWEVER DENOMINATED
(1) FOR WHICH HE IS CONSTITUTIONALLY ENTITLED TO TRIAL BY JURY; OR
(2) WHICH IS PUNISHABLE BY LOSS OF LIBERTY, EXCEPT THOSE OFFENSES FOR
WHICH SUCH PUNISHMENT IS NOT LIKELY TO BE IMPOSED. THE COURT MAY
APPOINT COUNSEL TO REPRESENT AN INDIGENT IN ANY OTHER CRIMINAL PRO­CEEDING
IN WHICH IT CONCLUDES THAT THE INTERESTS OF JUSTICE SO REQUIRE.
c. WAIVER OF RIGHTS TO COUNSEL. A DEFENDANT MAY WAIVE HIS RIGHTS TO COUNSEL
UNDER (a) AND (b), IN WRITING, AFTER THE COURT HAS ASCERTAINED THAT HE
KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY DESIRES TO FOREGO THEM AND THAT
HE IS COMPETENT TO DO SO. WHEN A DEFENDANT WAIVES HIS RIGHTS TO COUNSEL, THE
COURT MAY APPOINT AN ATTORNEY TO ADVISE HIM DURING ANY STAGE OF THE PROCEEDINGS.
SUCH ADVISORY COUNSEL SHALL BE GIVEN NOTICE OF ALL MATTERS OF WHICH THE DEFEND­ANT
IS NOTIFIED, BUT, IF THE DEFENDANT REQUESTS, SHALL NOT BE SEATED AT COUNSEL
TABLE AT TRIAL.
d. OTHER DEFENSE SERVICES.
(1) INVESTIGATOR. THE COURT MAY APPOINT AN INVESTIGATOR TO ASSIST AN
ATTORNEY, OTHER THAN THE PUBLIC DEFENDER, APPOINTED TO DEFEND AN
INDIGENT, UPON A FINDING THAT THE SERVICES OF AN INVESTIGATOR ARE
NECESSARY TO.THE PRESENTATION OF AN ADEQUATE DEFENSE.
(2) EXPERT WITNESS. THE COURT MAY APPOINT AN EXPERT WITNESS TO ASSIST
SUCH ATTORNEY WHENEVER THE PROSECUTOR HAS ANNOUNCED HIS INTENTION
TO CALL AN EXPERT AT TRIAL, UPON A FINDING THAT THE TESTIMONY OF AN
OPPOSING EXPERT ON THE SAME MATTER IS NECESSARY TO THE PRESENTATION
OF AN ADEQUATE DEFENSE. THE NUMBER OF EXPERT WITNESSES APPOINTED
FOR THE DEFENDANT SHALL NOT EXCEED THE NUMBER ANNOUNCED BY THE
PROSECUTOR.
(3) COMPENSATION. THE COURT SHALL ORDER A REASONABLE FEE PAID TO ANY
INVESTIGATOR OR EXPERT WITNESS APPOINTED UNDER THIS PROVISION.
e. UNREASONABLE DELAY IN RETAINING COUNSEL. IF A NON-INDIGENT DEFENDANT, OR
AN INDIGENT DEFENDANT WHO HAS REFUSED APPOINTED COUNSEL IN ORDER TO RETAIN
PRIVATE COUNSEL, APPEARS WITHOUT COUNSEL AT ANY PROCEEDING AFTER HAVING
BEEN GIVEN A REASONABLE OPPORTUNITY TO RETAIN COUNSEL, THE COURT MAY
PROCEED WITH THE MATTER, WITH OR WITHOUT SECURING A WRITTEN WAIVER OR
APPOINTING COUNSEL UNDER SECTION (c) TO ADVISE THE DEFENDANT DURING THAT
PROCEEDING.
f. WITHDRAWAL OF WAIVER. A DEFENDANT MAY WITHDRAW A WAIVER OF HIS RIGHTS TO
COUNSEL AT ANY TIME. HE WILL NOT BE ENTITLED TO REPEAT ANY PROCEEDING
PREVIOUSLY HELD OR WAIVED SOLELY ON THE GROUNDS OF THE SUBSEQUENT APPOINT-MENT
OR RETENTION OF COUNSEL.
Comment: This rule sets forth the defendant's basic rights to legal representation.
Rule 6.l(a). This section entitles the defendant to the aid of counsel during all phases of
the criminal process from an arrest or grand jury proceeding and initial appearance through a .
preliminary hearing and competency hearing if any trial or plea, sentencing hearing, sent~~c~ng,
appeal, post conviction proceeding and pr~bation ;evocation. See comments to Rules 12.5, • '
4.2, 5.1, 11.7, 20.2, 29.9, 34.5, 3s.s, and 30.7. The second sentence is intended to serv:h~~ld
a directive to law enforcement officials that defense attorneys, their staff, and ~xperts uired
be given full access to clients, subject only to reasonable time and pl.ace limitations req
6.1.
- 16 -
for orderly and efficient jail operations and the maintenance of security. This should alleviate
the difficulty, reported by a number of committee members, in communicating with jailed clients.
The last sentence contains the constitutional safeguard required by Argersinger v. Hamlin, u.s.
~-' 40 u.s.L.W. 4679 (June 12, 1972). ---
Rule 6.l(b). This provision is adopted from Gideon v. Wainwright, 372 U.S. 335 (1963)1
Argersinger v. Hamlin, supra1 ABA, Standards Relating to Providina Defense Services §4.1 (Approved
ozaft, 1968) and Burrage v. Superior Court, l05 Ariz. 53, 459 P.2 313 (1969). Paragraph (1)
requires appointment of counsel for indigent defendants who are constitutionally entitled to a trial
by jury--i.e., those punishable by no more than 6 months, $300 or both. See Dunaan v. Louisiana,
391 u.s. ~(1968); Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d""479 (1966); State v.
Reagan, 103 Ariz. 287, 289, 440 P.2d 907, 909 (1968). Prior to Argersinger, Arizona required
appointment of counsel only where the maximum punishment exceeded $500 in fines, 6 months, or
both, or where"the complexity of the case is such that the ends of justice require representationr"
Burrage, suera, at 55, 459 P.2d at 315. That standard precluded appointment of counsel in some
cases in which a defendant was entitled to a jury trial even though the right to counsel is
considered to be more fun~am7ntal than the right t? a jury. See Argersinger, sdpfa, 40 u.s.L.W.
at 4681. Given the holding in Argersinger forbidding incarceration unless the e endant had
or waived counsel, and the discussion therein concerning the fundamental unfairness of forcing
an indigent layman to conduct his own defense before a jury, id., 40 U.S.L.W. at 4685 (Powell, J.,
concurring); see also~., 40 U.S.L.W. at 4681 (majority opinIOn); Gidecn v. Wainwright, 372 U.S.
335 at 344, (I9'63r;-I°t is necessary to.require appointment of counsel for indigents constitutionally
entitled to a jury trial.
Paragraph (2) is adopted from the standard suggested in ABA, Standards, 1upra, and apparently
approved in Argersinger, supra, 4~ U.S.L.W. at 4683-4684 (~Burger, C.J., concurring). It
stops short of requiring the appointment of counsel in every criminal case (see Fed. R. Crim. P.
44(a)}, or even in every case for which the legislature has authorized a jair-Bentence as punish-ment.
There are two different approaches which can be taken to implementing the bare Argersinger
holding that a defendant must be represented by counsel before he can be imprisoned. The.first
requires the judge to look individually at each person who comes before him, and, on the basis 1
of brief information elicited from the defendant and the prosecutor, determine whether he will
sentence this defendant to a jail sentence if he is convicted, appointing counsel or securing a
waiver of counsel if he finds the likelihood sufficiently great. The second approach requires
the judge to look at the offense charged rather than at the particular defendant, determining in
a general way which charges are likely to result in a jail sentence (~,in 20% of all cases),
appointing counsel (or securing a waiver) for all such offens~s and foregoing the use of jail
sentences for all other offenses (unless, perhaps, the prosecutor suggests in a particular case
that there are aggravating circumstances sufficient to justify a jail sentence, and, hence,
appointment of counsel).
The committee has chosen the second approach as the standard to incorporate into Rule 6.1
(b) (2). It finds individualized pret~ial sentencing determinations fraught with problems of
prejudgment, abuse, and over-selectivity. Junker, The Right to Counsel in Misdemeanor Cases, 43
wash. L. Rev. 685, 709-710 (1968); cf. Gregg v. United States, 394 u.s. 489 (1968) (forbidding
disclosure of the pre-sentence report to the judge prior to trial). Even if the individualized
decision were made by someone other than the trial judge, the mere fact that the defendant appears
with appointed counsel might itself affect the trial judge's neutrality. Such a procedure would
also substantially delay the already overburdened misdemeanor courts and might actually create an
incentive for non-indigents to appear without a l~wyer (if they bring a lawyer to court, they can
be put in jail; if they do not the chances are substantially less). Establishing categories of
offenses will eliminate many of these di~fi?ulties. It.is clear that a jail term is used signifi­cantly
more often as punishment for conviction of certain offenses such as reckless driving,
leaving the scene of an accident, petty theft, and for recidivist offenders. Unless enacted
by the legislature, the categories would be non-binding, leaving the court free to appoint
counsel in any case where necessary in the interests of justice or where the prosecutor informs
the court that he will ask for a jail sentence.
unless Argersinger is extended,~ concurring opinion of Mr. Justice Powell, Argersinger,
Ruora,
40
u.s.L.W. at 4686, there is no rightdtbo appointed counisel for a jury trial granted by
~te (as in justice courts) but not.secure Y the constitut on; any other rule would enable a
defendant to bootstrap himself to appointed counsel by demanding a jury. However, where the
interests of justice require, the judge may appoint co~nsel in cases not encompassed within the
other provisions of Rule 6.l(b}. ~Burrage v. Superior Court, supra.
counsel may be appointed at any point in the proceedings.
Rule 6.l(c). section (c} provides the stan~ards for waiver of the rights to counsel, applicable
throughout these rules. It adopts the constitutional standard set down in Johnson v. zerbst,
J04 u.s. 458 (1938); Von Moltke v. Gillies, 332 U.S. 708 (1948); Miranda v. Arizona, 384 u.s.
436
(1966). Argersinger v. Hamlin, supra; and State v. Martin, 102 Ariz. 142, 426 P.2d 639 (1967).
Generally,'a defendant must be.advised of the charges against hi~, of the possible maximum sentence,
whether if convicted he is likely to be sentencedto a term of imprisonment, and of his rights
to be r~presented by ~ounsel and to have counsel appointed if he is indigent. He must know "exactly
- 17 -
what he• • • [is] doing when he waive[s] his right to counsel." Martin, supra, at 146, 426
P.2d at 643. The portion of Von Moltke, supra, at 724, stating that the judge should advi~e .
defendants waiving counsel of possible defenses and mitigating circumstances has not been included
as a constitutional requirement in subsequent cases. see Miranda, supra, and Boykin v. Alabama,
395 u.s. 238 (1969). -
A defendant must be competent to waive his rights, but it is not the committee's intent to
require a professional mental health examination before a waiver can be accepted, except when the
trial judge has "reasonable grounds to believe a defendant to be insane or mentally defective."
See Arizona v. Westbrook, 384 U.S. 150 (1966); State v. Westbrook, 101 Ariz. 206, 417 P.2d 530
1I966); State v. Martin, supra; cf., Rule 11.
The second sentence allows but does not require the court to appoint advisory counsel whenever
a defendant seeks to proceed prose. A number of cases have recognized a defendant's absolute
right to represent himself,~' united States v. Plattner, 330 F.2d 271 (2d Cir. 1964); State v. -
Martin, supra; State v. Betts, 2 Ariz. App. 27, 406 P.2d 229 (1965). but this right is not infringed
by appointment of advisory counsel, especially where his existence will be concealed from the
jury at the defendant's request. See Note, 76 Harv. L. Rev. 579, 585 (1963). The committee
suggests that'the better practice rs-to appoint advisory counsel when a defendant indicates ~e
wishes to waive counsel, to consult with him regarding the proposed waiver; it does not require
the practice by rule. Cf. ABA, Standards, supra, at §7.3; Mazor, The Right to be Provided Counsel,
9 Utah L. Rev. SO, 76 (1964).
Rule 6.l(d). This rule is intended to equalize, so far as possible within the limits of
existing statutes, the tactical resources of rich and poor and prosecution and defense in criminal
trials. It provides for the appointment of investigators or expert witnesses for a defendant
in a limited but significant number of cases.
The commentators have uniformly urged that indigent defendants be afforded ancillary defense
services. Attorney General's Committee, Report on Povert~ and the Administration of Federal
Criminal Justice (1963); ABA, Standards Relatin to Provi in Defense Services §l.5 (Approved
Draft, 1968). The assistance of counsel is o ten a meaningless right in the absence of means of
developing convincing evidence.
Furnishing the indigent defendant wlth a lawyer is not enough: the
best lawyer in the world cannot competently defend an accused person ~f the
lawyer cannot obtain existing evidence crucial to the defense,~, if the
defendant cannot pay the fee of an investigator to find a pivotal missing
witness or a necessary document, or that of an expert accountant or mining
engineer or chemist. United States v. Johnson, 238 F.2d 565, 572 (2d Cir. 1956)
(Frank, J., dissenting).
Congress in the 1964 Federal Criminal Justice Act, has provided a procedure by which.a defendant
can receive authorization from the trial court, in an ex parte hearing, to obtain the a~s7stance
of investigators and expert witnesses. 18 u.s.c. S3006A(e) (Cum. Supp. 1971). The provisio~ has
been acclaimed,~' Note, Assistance in Addition to counsel for Indigent Defendants, 16 Vill.
L. Rev. 323 (1970), and identical statutes have been enacted in a number of states,~' Md.
Annot. Code S26:12(B) (Cum. Supp. 1971); N.H. Rev. Stat. Ann. 604-A:6 (Cum. Supp. 1971). The
ABA has stated specifically that provision for such services is an essential element of any program
for providing e~fective legal assistance to the indigent. ABA, standards, supra, at §1.S.
The desirability of providing counsel representing indigents with the assistance of ex~erts
and investigators is undisputed. The principal problem in Arizona is the absence of ext:>licit
legislative authorization for such assistance. Both the supreme court and court of appeals
have rejected constitutional arguments for expert assistance, State v. Crose, 88 Ariz. 389, 357
P.2d 136 (1960) (right to counsel); State v. Reams, 104 Ariz. 472, 455 P.2d 446 (1969) (equal
protection), and arguments for expenses related to trial (~,process server) based on the
inherent power of the court. State v. Superior court, 2 Ariz. App. 466, 409 P.2d 750 (1966).
In State v. Bowen, 104 Ariz. 138, 140, 449 P.2d 603, 605 (1969), the court stated:
Until the power of the courts to order payment of defense exper~s is
authorized by appropriate legislation, we cannot judicially legislate
to enlarge the scope of the term "counsel" to encompass expert testimony.
If the court is willing to retreat from the broadest reading of the~ dictum quoted above,
the authorization of payment for counsel contained in Ariz. Rev. Stat. Ann. Sl3-1673 (Cum. Supp.
1971) can support payment of counsel's auxiliary staff authorized by Rule 6.l(d). The statute
reads as follows:
When counsel is appointed by the court and represents the de'fend~nt in .
either a criminal proceeding or insanity hearing, he shall be paid by h
the county in which the court presides provided that in th~~ebma~~ers w ~~e
a public defender is appointed no compensation shall be pai Y he count·
C i
· d d f ndant shall be sue amoun
ompensat on for such services rendere to e e . dd d)
as the court in its discretion deems reasonable. (Empha~is a e •
- 18 -
The authority to provide expert assistance can be derived from the emphasized sentence, which
authorizes the court to compensate counsel "in its discretion" for "such services" rendered.
Presumably, in a sympathetic court, appointed counsel could hire expert witnesses out of his
own pocket if it were necessary to the conduct of an adequate defense, and be reimbursed by the
court, which without abusing its discretion could find that the securing of witnesses was part .
of the "services" of counsel. If the statute grants the court such discretion, a fortiori, it
must permit the court to appoint the _expert directly. It can, therefore, be read to permit the
appointment of experts in cases where such assistance is an integral element of the services
of counsel.
The/argument is even stronger in the case of investigators. If the court denies an appointed
attorney the use of an investigator, a conscientious lawyer will take the responsibility of
investigation upon himself. Time spent on such tasks is time spent on preparation for trial and
clearly comes within the purview of Ariz. Rev. Stat. Ann. §13-1673 (Cum. Supp. 1971)--and attorney
time comes at a far higher hourly rate than the time of an investigator.
A broad reading has been given to a similar appointment statute in another jurisdiction
in order to obtain a result required by fundamental fairness. In State v. Hancock, 164 N.W.2d
330 (Iowa 1969), the Iowa Supreme Court reversed a conviction of uttering a forged instrument on
the ground that the trial court had abused its discretion in failing to appoint a handwriting
expert at the defendant's reque~t. The Iowa statute, I?wa Cod7 Ann. 775.5 (Cum. Supp. 1971), only
authorized payment of compensation to an attorney for his services (although the statute specifically
included "investigation"·as a compensable element of those services). The Iowa court noted the
essential role of expert testimony in the case--both parties had counsel and witnesses (personal
identification and alibi), but only one side had a handwriting expert. In such circumstances it
reasoned, the right to counsel is meaningless without the assistance of a countervailing expe;t.
Rule 6.l(d) is intended to provide the trial judge with no more than the narrow appointive
power suggested by the Iowa court. The court may appoint an investigator only when the service
is absolutely necessary to the effective conduct of the defense. The language should be construed
to require the court to consider all the- sources of information available to the defendant (such
as discovery under Rule 16) as well as all other evidence already at his disposal. Only when the
services of an investigator are essential to the defense should they be provided.
with respect to expert witnesses, the proposal is even stricter. An expert can be appointed
only when the prosecution has announced an intention to use experts of its own and opposing expert
testimony is necessary to an adequate defense. The fact that the prosecution-plans to use experts
is thus not sufficient in itself to permit the court to appoint a defense expert.
The argument that Ariz. Rev. Stat. Ann. §13-1673 (Cum. Supp. 1971) provides a trial court
with a limited power to appoint experts has been explicitly raised in only one Arizona case. In
state v superior court, supra' at 472, 409 P.2d at 755-756 it was rejected by the court of
appeals.in an opinion grounde in the principle of stare decisis and the holding of State v.
~'supra:
In state v. Crose, our Supreme Court did not gainsay that "***the
assistance of experts in advance of trial often lies at the very
heart of a successful defense." ••• We do not think that our
supreme Court intends that a trial court have the right to grant
this type of assistance to one defendant and deny it to another
when it is equally necessary. If A.R.S. 13-1673 has the broad
meaning now contended for it, State v. Crose would have been
decided differently.
The reasoning is open to serious question since the applicability of the statute was neither
presented nor considered in the~ case~ the defendant c~nte~ded only that the right to appointed
experts was grounded in the Arizona and Un7ted States constituti~ns and made no argument based on
the statute and the role of experts as ancillary to that of appoi~ted counsel. The holding of
State v. superior court, supra, thus rests on a very weak foundation.
The most common request for expert services for an indigent has always been for psychiatric
witnesses. see state v. Crose, supra. However, the right to appointed mental health experts has
been provided by statute, Ariz. Rev. Stat. Ann. §§13-1621 and 13-1621.01 (Cum. Supp. 1971), and
carried forward in Rule 11. Consequently, Rul7 6.l(d~ is limited to the much smaller class of
cases in which a different type of expert testimo~y will be useful to t~e prosec~tion and rebuttal
of it necessary to the defense. Thus, as a practical matter, the adoption of this rule will not
make a great deal of differenc7 to the ~rdinary administration.of criminal justice in the sta~e;
b t the assistance of expert witnesses is not a small matter--it can affect the actual operative
f~irness of the system as profoundly as the right to counsel, or the right to effective cross-examination.
Rule 6.l(e). This rule incorporates the st~ndard ?f.Ariz. R. Crim. P. 19(B) to protect the
court against dilatory tactics of the.d7fendant in retaining counsel. It applies to all stages
of the proceedings, not just the preliminary hearing.
- 19 -
Rule 6.l(f). The defendant can decide at any time that he was mistaken to waive counsel; the
court should encourage an unrepresented defendant at all stages to obtain counsel. The defendant's
right to withdraw a waiver of counsel is unlimited; however, he is not allowed to use late appoint­ment
or retention of counsel to disrupt orderly and timely processing of his case. Thus, he cannot
delay a scheduled proceeding, nor repeat one already held, solely becuase of a change of heart
concerning his ability to.represent himself.
6.2. APPOINTMENT OF COUNSEL.
THE PRESIDING JUDGE OF EACH COUNTY SHALL ESTABLISH A PROCEDURE FOR APPOINTMENT
OF COUNSEL BY THE SUPERIOR COURT, OR BY THE NON-RECORD COURTS, FOR EACH INDIGENT
PERSON ENTITLED THERETO BY LAW WHO DOES NOT WAIVE REPRESENTATION.
Comment: The committee decided that the actual place of appointment should be left within
the discretion of the local superior court. The needs of large and small counties, and the extent
to which justices of the peace and city magistrates can be trusted to match difficult cases with
skilled counsel, vary throughout the state--the appointment rule should be flexible enough to
accommodate all situations. The committee concluded, however, that J.P.s and city magistrates
can lawfully be delegated the appointment power even in felony cases by court rule. See comment
to Rule 6.7(c). Thus, the presiding judge of the superior court of each county, based upon
experience,can decide whether to delegate the appointment power to the non-record courts or to
retain it in the superior court.
The language of Rule 6.2 is directive, not discretionary. The committee intends thereby to
express its disapproval of court practices which discourage or delay appointment of counsel when
it is requested,~' offers by the court of a sentence or plea bargain in order to eliminate the
need for counsel at a preliminary hearing.
The issue of compensation is covered in Rule 6.7.
6.3. DUTIES OF COUNSEL1 WITHDRAWAL.
a. NOTICE OF APPEARANCE. AT HIS FIRST APPEARANCE IN ANY COURT ON BEHALF OF'
A DEFENDANT, AN ATTORNEY, WHETHER PRIVATELY RETAINED OR APPOINTED BY THE
COURT, SHALL FILE A NOTICE OF APPEARANCE.
b. DUTY OF CONTINUING REPRESENTATION. COUNSEL REPRESENTING A DEFENDANT AT ANY
STAGE SHALL CONTINUE TO REPRESENT HIM IN ALL FURTHER PROCEEDINGS DEALING
WITH THE SAME OFFENSE, INCLUDING APPEAL, UNLESS THE COURT PERMITS HIM TO
WITHDRAW.
c. DUTY UPON WITHDRAWAL. NO ATTORNEY SHALL BE PERMITTED TO WITHDRAW AFTER A
CASE HAS BEEN SET FOR TRIAL EXCEPT UPON MOTION ACCOMPANIED BY THE NAME AND
ADDRESS OF ANOTHER ATTORNEY, TOGETHER WITH A-SIGNED STATEMENT BY THE
SUBSTITUTING ATTORNEY THAT HE IS ADVISED OF THE TRIAL DATE AND WILL BE
PREPARED FOR TRIAL.
d. LIMITATION ON GROUNDS FOR WITHDRAWAL. AFTER AN ARRAIGNMENT, NO ATTORNEY
MAY WITHDRAW FROM A CRIMINAL CASE SOLELY FOR NONPAYMENT OF FEES. APPOINTED
COUNSEL MAY WITHDRAW AFTER THE ARRAIGNMENT ON THE GROUNDS OF HIS CLIENT'S
INELIGIBILITY ONLY UPON A SHOWING THAT WITHDRAWAL WILL NOT DISRUPT THE
ORDERLY PROCESSING OF THE CASE.
Comment: Rule 6.3(a). This provision is included to inform the court and the state who is
representing the defendant for purposes of service, discovery and plea negotiations and ~o fix clea:ly
in the record the responsibility for continuing legal representation on the attorney first appearing
for the defendant. If the attorney has made an appearance in a non-record court in a particular
felony case on behalf of the defendant, he need not file a new notice of appearance when the
defendant is bound over to superior court. ~Form IX.
Rule 6.3(b). This rule imposes a duty on counsel--private or appoi~t7d--to see a case through
to its conclusion,including appeal. See ABA, Standards Relating to Providing Defens~ s~r;ic~s t
SS.2 (Approved Draft, 1968). Piecemeal representation--one attorney appearing fort~ teie~ an
at his initial appearance, another at the preliminary hearing only, and yet another a r a -­creates
confusion for the court and prosecutor and inefficiently uses scarce legalbr~~~u~~es. f
This rule requires an attorney to finish what he starts, including any appeal. Susi uI~on °
counsel after trial would severely hamper the effort to speed up the appellate process. was
the conclusion of the committee and the ABA Standards, supra, at 48, that:
The advantage of familiarity with the case will gen7rall~ ou~~eigh
any possible advantages to be gained in the fresh viewpoint
successor counsel.
- 20 -
. Rule 6.3(c). Section (c) incorporates Ariz. Uniform Rules of Practice XII (c) into the
criminal rules in order to emphasize its importance in maintaining the trial date. It adds a
requirement that the address of substitute counsel be included in the withdrawal application. See
Ariz. Uniform Rules of Practice XII (c). The conunittee deleted a provision excusing withdrawinq-­counsel
.from securing a replacement when the client states he has been advised of hhe trial date
and has made suitable arrangements to be prepared for trial. See Ariz. Uniform Rules of Practice
XII(c) (3). It concluded that counsel should have an absolute duty to find substitute counsel ·
before withdrawing from a criminal case. '
Rule 6.3(d). The conunittee chose the arraignment as the appropriate cut-off date for with­drawal
due to non-payment of fees because the discovery and omnibus hearing procedures require
that counsel be fixed by that date. It voted to relax this time limit somewhat for appointed
counsel to avoid the hardship of appointment when investigation shows that a defendant is not
indigent.
6.4. DETERMINATION OF INDIGENCY.
a. STANDARD. THE TERM "INDIGENT" AS USED IN THESE RULES MEANS A PERSON WHO
IS UNABLE TO OBTAIN SERVICES OF COUNSEL WITHOUT INCURRING SUBSTANTIAL
HARDSHIP TO HIMSELF OR TO HIS FAMILY.
b. QUESTIONNAIRE. A PERSON DESIRING TO PROCEED AS AN INDIGENT SHALL COMPLETE
UNDER OATH A QUESTIONNAIRE CONCERNING HIS FINANCIAL RESOURCES, ON A FORM
APPROVED BY THE SUPREME COURT.
c. RECONSIDERATION. IF A DETERMINATION OF INDIGENCY OR NON-INDIGENCY HAS BEEN
MADE BY A PERSON OTHER THAN A SUPERIOR COURT JUDGE, IN A CASE TRIABLE IN
SUPERIOR COURT, OR, IF SUCH DETERMINATION WAS MADE BY A SUPERIOR COURT JUDGE
BUT THERE HAS BEEN A MATERIAL CHANGE IN ~IRCUMSTANCES, EITHER THE PERSON
REQUESTING APPOINTMENT OF COUNSEL, THE ATTORNEY APPOINTED, OR THE PROSECUTOR
MAY MOVE FOR RECONSIDERATION OF THE DETERM!NATION BY THE SUPERIOR COURT.
comment: The purpose of Rule 6.4 is to provide standards and procedures for determining
indigency which can be applied uniformly in the Arizona courts. It proceeds on the basic premise
that the efficient and fair administration of justice is served by early appointment of defense
counsel in all criminal cases, limited only by the need to conserve public resources in cases
where the defendant's means clearly enable him to defend himself.
Rule 6.4(a). This standard is drawn from present Arizona law, and the ABA Standards Relating
to Providing Defense Services §6.l (Approved Draft, 1968).
The term "services of counsel" has been used instead of "adequate representation" in order
to avoid unnecessary argument over the quality of services provided. The phrase "without incurring
substantial hardship to himself or to his family" is included:
••• [T]o emphasize that eligibility is not to be determined on the
supposition that one is entitled to be provided counsel only after he
has exhausted every financial resource that might be required for other
vital personal or family necessities, such as food, shelter, or medicine.
ABA, Standards, supra, at 54 (1967).
In making a determination whe~her or not a defendant is indig7nt, th7 court should consider
such factors as income, source of income, property owned, outstanding obligations, the number and
ages of any dependents, and other sources of family income; but it should not consider the fact
that a person has been released on bail nor the ability of friends or relatives, not legally
responsible for him, to obtain services of counsel. See Model Defense of Needy Persons Act §4(b);
state v. Vallejos, 87 Ariz. 119, 348 P.2d 554 (1960); ABA, Standards, supra, at §6.1.
The current standard for indigency for the appointment of counsel in criminal cases is "no
means to employ counsel." ·Ariz. R. Crim. P. 16 (B) (Cum. Supp. 1971) and Ariz. R. Crim. P. 163
(1956). The relevant statutory provision, Ariz. Rev. Stat. Ann. §13-1673 (Cum. Supp. 1971),
includes no standard at all. The only appellate decision discussing the Rule 163 standard is
state v. Allen 105 Ariz. 267, 463 P.2d 65 (1969), which created a presumption of indigency in
marginal cases: The court also stated that the.fact that "the defendant had made a $500 bond or
his failure to really bestir himself to secure counsel cannot be construed as a waiver of a
constitutional right." Id. ,at 269, 463 P.2d.at 66-67. The more stringent standard "without
means and wholly unable to pay" ~n Ariz: R7v. Stat. Ann. §13-1714 (1956) governing provision of
the record on appeal and transcript to indigents by a county was discussed in State v. Vallejos,
87
Ariz. 119, 122, 348 P.2d 554, ~58 (1960). Reversing Riley v. State, 49 Ariz. 123, 65 P.2d 32
(1937), the court held:
[T]he rule set out in Riley v. State, supra--insofar as it denies the
benefits of A.R.S. §13-1714 to those whose friends and relatives, though
not legally responsible, are able to pay for the appeal--is contrary to
the spirit of the new pronouncements by our highest court.
- 21 -
The pronouncements referred to are Griffin v. Illinois, 351 U.S. 12 (1956) and Burns v. Ohio,
360 U.S. 252 (1959) which indicated that "the availability of the appellate procedure to the
individual defendant may not be denied on the basis of discriminatory economic distinctions."
A subsequent decision, based on Vallejos, held that despite the fact that the trial court did
not entirely believe the defendant and despite testimony that the defendant "had handled considerable
money and had owned property" but had ~pent and disposed of it all before trial:
Where an affidavit is filed, and hearing held, unless assets or means
with which to purchase a record and the transcript other than by
borrowing from friends are shown, then the defendant has made out a
prima facie case, and it is the duty of the court, in its discretion,
to order payment thereof by the county. State v. Owen, 97 Ariz. 250,
255, 399 P.2d 660, 666 (1965).
In~, the court disregarded the fact that the defendant's wife had property (a piano) which
might serve as security for a loan. Id., at 252, 399 P.2d at 662-663.
While no case directly discusses the question of the threshold of hardship which may be
imposed, the above cases, and the fact that Ariz. R. Crim. P. 163 imposes a lesser standard for
appointment of counsel than Ariz. Rev. Stat. Ann. §13-1714 (1956) imposes for provision of the
transcript and record on appeal, suggest that Rule 6.4(a), while clarifying present law, does not
work a substantial change from the present Arizona standards of indigency.
Rule 6.4(b). This provision is drawn from ABA Standards Relating to Providing Defense Services
S6.3 (Approved Draft, 1968) and Model Defense of Ne~dy Persons Act §4(b). The questionnai:e is
to provide the court with a factual basis on which to determine indigency, and the amount if any,
which the defendant can contribute to his defense under Rule 6.7(d). A standard form will also
help in obtaining statewide uniformity of practice--specifying what is and is not relevan; •. At
present, only the defendant's sworn statement that he is "without means to employ counsel is
required, see Ariz. R. Crim. P. 163, though the judge has inherent power to conduct an inquiry
if he feelS"Tt necessary. See Form V.
Rule 6.4(c). Reconsideration is allowed as a hedge against expanding the appointive p~wer
in Rule 6.2, allowing either party, or the attorney appointed, to obtain superior court review of
an indigency ruling in a felony case. The use of the term "move" incorporates the procedural
requirements of Rules 38.l and 38.5.
Although the rule does not apply to superior court review of indigency rulin~s in.cases .
triable in non-record courts, defendants may seek such review by special action filed in superior
court under Rule 18.3(a).
6.5. MANNER OF APPOINTMENT.
ORDER OF APPOINTMENT. WHENEVER COUNSEL IS APPOINTED, THE COURT SHALL DIRECT
A MINUTE ENTRY TO THAT EFFECT, A COPY OF WHICH SHALL BE GIVEN OR SENT TO THE
DEFENDANT, THE ATTORNEY APPOINTED,AND THE PROSECUTOR.
APPOINTMENT OF PUBLIC DEFENDER. IN COUNTIES WHICH HAVE A PUBLIC DEFENDER, THE
PUBLIC DEFENDER SHALL REPRESENT ALL PERSONS ENTITLED TO APPOINTED COUNSEL
WHENEVER HE IS AUTHORIZED BY LAW AND ABLE IN FACT TO DO SO.
OTHER APPOINTMENTS. IF THE PUBLIC DEFENDER IS NOT APPOINTED, A PRIVAALTEL BE
ATTORNEY SHALL BE ASSIGNED TO THE CASE. ALL CRIMINAL APPOINTMENTS SH
MADE IN A MANNER FAIR AND EQUITABLE TO THE MEMBERS OF THE BAR, TAKING INTO
ACCOUNT THE SKILL LIKELY TO BE REQUIRED IN HANDLING A PARTICULAR CASE.
REQUESTS FOR REPRESENTATION BEFORE GRAND JURY. A REQUEST FOR APPOINTMENT OF
COUNSEL UNDER RULE 12.6 SHALL BE MADE AND PROCESSED AS IF PROCEEDINGS HAD
ALREADY COMMENCED IN SUPERIOR COURT.
Comment: Rule 6.S(a). Section (a) is included to assure that adequ~te records of appointment
and service of counsel are maintained by all courts and that the persons involve~ ar7 properly
notified. The papers transferred to the superior court after a prelimina:y hearing in a no~f he
record court should contain the name of any attorney appointed and a notice of appearance
made an appearance on the defendant's behalf. ~Rule 6.3(a).
Rule 6.S(b). This section merely adopts current law; it does not attempt to specify or limit
the instances in which the public defender is not "able in fact" to provide representation.
1 6 ()
· d · an equitable manner but not so
Rue .5 c •Appointments of private counsel are to be ma e in ' . t
as to overlook the needs in individual cases for highly skilled counsel. The local superior cour
may establish its own selection system. See Rule 6.2.
Rule 6.5(d). This section implements the rights to counsel contained in Rules
12•5
and
12•6•
a.
b.
c.
d.
- 22 -
6.6. APPOINTMENT OF COUNSEL DURING APPEAL.
THE TRIAL OR APPELLATE COURT MAY APPOINT NEW COUNSEL FOR A DEFENDANT LEGALLY
ENTITLED TO SUCH REPRESENTATION ON APPEAL, WHEN PRIOR COUNSEL IS PRECLUDED BY
LAW OR LEGAL ETHICS FROM REPRESENTING THE DEFENDANT AND A MOTION TO WITHDRAW
UNDER RULE 6.3 HAS BEEN GRANTED, OR WHEN THE PUBLIC DEFENDER IS UNABLE TO
PROSECUTE A TIMELY APPEAL .•
Comment: Rule 6.6 authorizes either the trial or appellate court to appoint counsel for
appeal, implementing the appeal rules in this reg~rd. See Rule 34.5. It applies in two separate
situations--when trial counsel is unable to continue on appeal, see Rule 6.3, and when the public
defender's appellate section because of a lack of resources is unable to prosecute ~n appeal in
a timely fashion. See Time Extension Policy Guidelines of division one of the court of appeals
(November 22, 1971).
6.7 •. COMPENSATION OF APPOINTED COUNSEL.
a. TIMES FOR FILING CLAIMS. A PRIVATE ATTORNEY APPOINTED TO REPRESENT AN
INDIGENT SHALL FILE CLAIMS FOR'COMPENSATION FOR SERVICES RENDERED AT THE
COMPLETION OF ALL TRIAL OR SENTENCING PROCEEDINGS AND AT THE COMPLETION
OF ALL APPELLATE PROCEEDINGS.
b. AMOUNT OF COMPENSATION. AFTER REVIEW OF THE CLAIM, THE COURT SHALL AWARD
THE ATTORNEY A SUM REPRESENTING REASONABLE COMPENSATION FOR THE SERVICES
PERFORMED. IN SETTING THE AMOUNT OF COMPENSATION, THE COURT SHALL TAKE
INTO CONSIDERATION ANY AMOUNT ACTUALLY PAID BY THE DEFENDANT UNDER SECTION
(d). HOWEVER, THE AGGREGATE AMOUNT PAID BY THE DEFENDANT AND THE COUNTY
SHALL NOT EXCEED THE FULL AMOUNT PAID BY THE COUNTY ALONE TO THE APPOINTED
ATTORNEYS IN COMPARABLE CASES.
c. ENTITLEMENT FOR LOWER COURT REPRESENTATION. AN ATTORNEY SHALL BE ENTITLED
TO COMPENSATION FOR SERVICES RENDERED WHETHER OR NOT A CRIMINAL CASE REACHES.
·suPERIOR COURT.
d. CONTRIBUTION BY THE DEFENDANT. IF IN DETERMINING THAT A PERSON IS INDIGENT
UNDER RULE 6.4(a), THE COURT FINDS THAT SUCH PERSON HAS FINANCIAL RESOURCES
WHICH ENABLE HIM TO OFFSET IN PART THE COSTS OF THE LEGAL SERVICES TO BE
PROVIDED, THE COURT SHALL ORDER HIM TO PAY TO THE APPOINTED ATTORNEY, THE
COUNTY, OR THE CLERK OF THE COURT, SUCH AMOUNT AS IT FINDS HE IS ABLE TO PAY
WITHOUT INCURRING SUBSTANTIAL HARDSHIP TO HIMSELF OR TO HIS FAMILY. FAILURE
TO OBEY AN ORDER UNDER THIS SECTION SHALL NOT BE GROUNDS FOR CONTEMPT OR
GROUNDS FOR WITHDRAWAL BY THE APPOINTED ATTORNEY, BUT AN ORDER UNDER THIS
SECTION MAY BE MADE A CONDITION OF PROBATION AND MAY BE ENFORCED BY THE
PAYEE IN THE MANNER OF A CIVIL JUDGMENT. EXCEPT AS AUTHORIZED HEREIN, NO
PERSON, ORGANIZATION OR GOVERNMENTAL AGENCY MAY REQUEST OR ACCEPT ANY PAYMENT
OR PROMISE OF PAYMENT FOR ASSISTING IN THE REPRESENTATION OF A DEFENDANT BY
COURT APPOINTMENT.
Comment: Rule 6.7(a) •. An attorney conducting both trial and appeal need not wait until the
cpmpletion of the appellate process before receiving payment for his services in connection with
the trial. His voucher for services at trial and sentencing should be filed in the trial court,
that for appeal in the appellate court.
Rule 6.7(b). section (b) uses the generally accepted standard for compensation, incorporated
in Ariz Rev. stat. Ann. §13-1673 (Cum. Supp. 1971). The second sentence is intended to insure
that ap~ointed attorneys are fully compensated but to dispel the impression that they are being
paid twice for their services.
Rule 6.?(c).
In Johnson v. Board of Sup7ri:isors, 4 ~riz. App. ~3, 417 P.2d 546 (1966), an
attorney who had performed services at a prelimi~ary hearing by.appointment of the J.P. sued the
b rd of supervisors of Pima County to recover his fee under Ariz. Rev. Stat. Ann. §13-1673 (Cum.
S
oa
1971)
The court ruled that the legislature intended the statute to apply only to situations
iunp pw h• ich app• ointed counsel is consti· tuti· ona1 1 Y requi· r7d , and si· nce.counse1 was not requi· r7d at
reliminary hearings at that time, ~hat the statute did not authorize payment. However, in Johnson
Pd Douglas v Superior court, 2 Ariz. App. 407, 409 P.2d 566, vacated on other grounds, 101 Ariz.
;~3,
419
P.2d.730 (1966), the court of appeals, in dictum, held that an attorney is entitled to.
compensation for services performed at the J.P •. level even.though t~e case does not reach superior
t if the appointment was made by the superior court. The corrunittee concluded that after
~~~~m~n v. Alabama, 399 u.s:-1 (1969), and Argersin~er v. Hamlin,~- u7s. ~' 4?, U.S.L.W. 4679
{J 12 1972) the rationale of the Johnson case cuts in exactly the opposite direction, and that
thun~istinction in Johnson and Douglas--as to the court making the appointment--is one without
e basis in the statute itself, which refers only to "the court"--by inference the one in which ~g~ "criminal proceeding" took place. Thu~, it found no.statutory or case law impediments to
compensation of appointed counsel for services rendered in non-record courts.
- 23 -
Rlfle 6.7(d). This provision is included at the suggestion of the ABA Standards Relating to
Providing Defense Services S6.2 (Approved Draft, 1968). It has a dual purpose: (i) to lighten
the burden of providing legal services on county taxpayers by requiring t~ose unable to pay the
full amount of legal services to pay what they can, and (ii) to aid those persons who find them­selves
not affluent enough to be able to afford private counsel and too rich to qualify for
appointed counsel or the public defender under present standards. see Silverstein, Defense of the
~ 112, 118 (1965). -
Partial compensation of trial costs and attorney's fees is not specifically authorized by
statute,~ Ariz. Rev. Stat. Ann. §13-1673 (Cum. Supp. 1971). The statute provides that reason­able
compensation for services rendered by appointed counsel shall be paid by the county, and that
no compensation on a per case basis shall be paid to the public defender. However, courts in
some counties have long imposed an analogous requirement as a condition of probation--that a
probationer pay a specified amount to his trial counsel or to the county, as reimbursement of the
costs of trial. The conunittee concluded that since the court has discretion over the amount of
compensation paid to appointed attorneys, it may set the level of compensation so as to account
for the defendant's contribution, and that it is appropriate that attorneys be appointed in those
cases in which the defendant has some means to pay. In deciding whether to order contribution by
the defendant, the court may consider the ability of the defendant to obtain gain~ul employment
if he is currently unemployed, but it should not premise its decision on speculation concerning
nis possible future resources.
The judge is given discretion in determining to whom the partial payment is to be made. In
the case of a person being defended by the public defender, such payment should be made to the
county; when a private attorney has been appointed, direct payment is al~owed to promo~e an
attorney-client relationship, or p~yment may be made to the clerk when direct payment is inappro­priate.
Making payment a condition of probation and enforcing a payment orde7 under.Ariz. R •. civ.
P. 69 seem the only feasible and constitutional ways of implementing this section. Making
payment a condition of probation permits the probation officer to aid in securing compliance.
See Rule 30. It is intended, however, that revocation for nonpayment be used.only as a last
resort since imprisoning a person already adjudged an indigent for failing to pay for 7fforts
intended to prevent or to shorten his incarceration seems Mikado-esque at best. The final sentence
is to prevent the application of improper pressures on the defendant or his family and friends and
is taken directly from the 1964 Federal Criminal Justice Act, 18 u.s.c. S3006(A) (f).
RULE 7.
7.1.
RELEASE.
DEFINITIONS AND APPLICABILITY OF RULE.
a. OWN RECOGNIZANCE. "OWN RECOGNIZANCE" MEANS RELEASE WITHOUT ANY CONDITION
OF AN UNDERTAKING RELATING TO, OR DEPOSIT OF, SECURITY.
b. APPEARANCE BOND. AN "APPEARANCE BOND" ·IS AN UNDERTAKING, ON A FORM
APPROVED BY THE SUPREME COURT, TO PAY TO THE CLERK OF THE COURT A
SPECIFIED SUM OF MONEY UPON FAILURE OF A PERSON RELEASED TO COMPLY
WITH ITS CONDITIONS.
c. 10% APPEARANCE BOND. A "10% APPEARANCE BOND" IS AN APPEARANCE BOND
SECURED BY DEPOSIT WITH THE CLERK, IN CASH, OF A SUM NOT TO EXCEED
10% OF THE AMOUNT THEREOF.
d. SECURED APPEARANCE BOND. A "SECURED APPEARANCE BOND" IS AN APPEARANCE
BOND SECURED BY DEPOSIT WITH THE CLERK OF SECURITY EQUAL TO THE FULL
AMOUNT THEREOF.
e , .SECURITY. "SECURITY" IS CASH, A SURETY'S UNDERTAKING, OR ANY PROPERTY
OF VALUE, DEPOSITED WITH THE CLERK TO SECURE AN APPEARANCE BOND. THE
VALUE OF SUCH PROPERTY SHALL BE DETERMINED BY THE CLERK, OR AT HIS OR·
A PARTY'S REQUEST, BY THE COURT.
f. SURETY. A "SURETY" IS ONE, OTHER THAN THE PERSON RELEASED, WHO EXECUTES
AN APPEARANCE BOND AND BINDS HIMSELF TO PAY ITS AMOUNT IF THE PERSON
RELEASED FAILS TO COMPLY WITH ITS CONDITIONS. A SURETY SHALL FILE WITH
AN APPEARANCE BOND AN AFFIDAVIT THAT HE IS NOT AN ATTORNEY OR PERSON
AUTHORIZED TO TAKE BAIL, AND THAT HE OWNS PROPERTY IN THIS STATE (OR IS
A RESIDENT OF THIS STATE OWNING PROPERTY) WORTH THE AMOUNT OF THE
APPEARANCE BOND, EXCLUSIVE OF PROPERTY EXEMPT FROM EXECUTION AND ABOVE
AND OVER ALL LIABILITIES, INCLUDING THE AMOUNT OF ALL OUTSTANDING
APPEARANCE BONDS ENTERED INTO BY HIM, SPECIFYING SUCH PROPERTY, THE
EXEMPTIONS AND LIABILITIES THEREON, AND THE NUMBER AND AMOUNT OF SUCH
'APPEARANCE BONDS.
- 24 -
g. PROFESSIONAL BONDSMAN. ANY PERSON WHO IS SURETY SIMULTANEOUSLY ON MORE
THAN FOUR APPEARANCE BONDS IS A "PROFESSIONAL BONDSMAN." NO PERSON MAY
BE A PROFESSIONAL BONDSMAN UNLESS CERTIFIED ANNUALLY BY TttE CLERK OF THE
SUPERIOR COURT THAT HE
(1) IS A RESIDENT OF THIS STATE;
(2) HAS SUFFICIENT FINANCIAL NET WORTH TO SATISFY REASONABLE OBLIGATIONS
AS A SURETY;
(3) HAS NOT ~EEN CONVICTED OF A FELONY;
(4) HAS NO JUDGMENTS ARISING OUT OF SURETY UNDERTAKINGS OUTSTANDING
AGAINST HIM;
(5) HAS NOT, WITHIN A PERIOD OF TWO YEARS, VIOLATED ANY PROVISIONS OF
THESE RULES OR ANY COURT ORDER.
CERTIFICATION MAY BE REVOKED OR WITHHELD BY THE CLERK, OR BY THE COURT, FOR
VIOLATION OF ANY PROVISION OF THIS RULE.
h. APPLICABILITY. THIS RULE SHALL NOT APPLY TO MINOR TRAFFIC OFFENSES.
comment: Rule 7.1 con~ains the defi~itions of the t7r~s u~ed in the rule and the requirements
for "sureties" and "professional bondsmen currently specified in the rules of criminal procedure.
Rule 7.l(a). Nowhere is the term "own recognizance" defined in current rules or statutes.
see Form VI for an order of release on own recognizance. - Rule 7.l(b). ·The rule substitutes for "bail bond" and "bail" the term "appearance bond" which
emphasizes the role of unsecured bonds. See Ariz. Rev. Stat. Ann. §13-1577(E) (Cum. Supp. 1971)
(noting propriety of conditions other than money bail). See Form VII.
Rule 7.l(c). This section incorporates the 10% deposit provision used in Illinois and other
~urisdictions which have pioneered in bail reform. See 38 Ill. Rev. Stat. §110-7 (Supp. 1971).
Its effect is to allow the defendant to act as his own bailbondsman, promising to pay the full
amount of the bond if he does not appear, but depositing only 10% of it with the court. Ten per­cent
is all that the defendant himself pays when he posts a bail bond at present; it is the standard
amount of the "bond premium" charged by the bondsman. However, under this provision, the defendant
will be able to recover most of his deposit when he satisfies his obligation to appear. See
Rule 7.6(e) which authorizes the clerk of the court to retain a reasonable fee to cover the cost of
administration and handling.
use of the 10% appearance bond eliminates some of the unfairness of the traditional bail bond.
The bondsman returns none of the "bond premium;" it is, in effect, a forfeiture imposed on a
citizen because he has been charged with crime. The bond also creates an additional incentive for the
defendant to appear, for he gets most of his deposit back. One commentator claims tha~ there has
been a lower rate of forfeiture of 10% than of full surety bonds under the Illinois plan. BoWr:lan,
The Illinois Ten Percent Bond Deposit Provision, 1965 u. Ill. L.F. 35.
It is clear to most observers that bail bondsmen are a blight on a modern system of cri~i~al
justice, and their eradication has been proposed by the ABA, Standards Relating to P